01A10254
03-12-2002
Alfredo Juan, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Alfredo Juan, Jr., v. United States Postal Service
01A10254
March 12, 2002
.
Alfredo Juan, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A10254
Agency No. 4F- 926-0007-99
Hearing No. 340-99-3324X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
BACKGROUND
The record reveals that complainant, a Part Time Flexible Distribution
Clerk at the agency's South Laguna Carrier Annex (formerly known as the
LAGUNA Beach Post Office), in Laguna Beach, California facility, filed
a formal EEO complaint on November 6, 1998, alleging that the agency had
discriminated against him on the bases of race (Asian), national origin
(Filipino), sex (male), and age (54) when, on August 21, 1998, he was
terminated for failure to qualify for his scheme.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant did not establish a prima facie case
of discrimination since he did not identify, or proffer any evidence
regarding any non-Asian, non-Filipino, younger female employees who,
under similar or comparable circumstances, were treated differently
by management.
The AJ further concluded that assuming arguendo that complainant
established a prima facie case of discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ found
that complainant was removed because he failed to pass the required
scheme training test for the position he held.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found
that complainant was provided with the opportunity to take the same
test on 12 different occasions and seven of those 12 were within a 20
day period of time prior to his removal. The AJ further found that of
those 12 re-tests, complainant's highest score was 94% which was still
below the required passing score of 95%.
The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id . at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Applying the standards set forth in Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
concurs with the AJ's finding that complainant did not establish a prima
facie case of discrimination.
The Commission further finds that assuming arguendo that complainant
established a prima facie case of discrimination, the agency articulated a
legitimate nondiscriminatory reason for its action, namely, complainant
failed to pass the required scheme training test for the position.
Specifically, the record reveals that management advised complainant that
he was required to qualify on his assigned scheme or be terminated for
failure to meet the requirements of the position. The record also reveals
that complainant was required to achieve a score of 95% on a scheme test,
and that complainant retested for his position on 12 different occasions
and did not achieve a passing score.
The Commission further finds that complainant failed to show that the
agency's stated reason was a pretext for discrimination. Complainant
failed to show that the agency's requirement to pass the test was
discriminatory, nor did he establish that he failed the test due to
discrimination.
In conclusion, after a de novo review of the record, we find that there
are no genuine issues of material fact. The Commission finds that the AJ
correctly decided that summary judgment was appropriate in this case, and
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, we AFFIRM the agency's final
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 12, 2002
__________________
Date