0120064646
03-06-2008
Alice Chen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alice Chen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200646461
Agency No. 1F927000806
DECISION
On August 7, 2006, complainant filed an appeal from the agency's July 18,
2006, final decision concerning her equal employment opportunity (EEO)
complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission affirms the agency's final decision.
At the time of events giving rise to this complaint, complainant
worked as a Full Time Mail Processing Clerk at the agency's Anaheim
Processing and Distribution Center facility in Anaheim, California.
Complainant applied for the position of Tool and Parts Clerk, PS-05,
Posting #VMF058, at the Pomona Vehicle Maintenance Facility. Complainant
submitted her application for the position. She and one other candidate
were interviewed on October 12, 2005. The selection panel determined
that complainant was not qualified for the position. The other candidate
(selectee1) was offered the position. Selectee1 was later determined to
be ineligible for the position. As a result, the position was reposted
and another individual (selectee2) was selected for the reposted position.
On February 1, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Asian), disability
(lower back, shoulder, cervical), and in reprisal for prior protected
EEO activity when, on November 11, 2005, she received notification that
she was not selected for the position of Tool and Parts Clerk, PS-05,
Posting #VMF058, at the Pomona Vehicle Maintenance Facility.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance
with complainant's request, the agency issued a final decision (FAD)
pursuant to 29 C.F.R. � 1614.110(b), concluding that complainant
failed to prove that she was subjected to discrimination as alleged.
Specifically, the agency found that complainant failed to establish a
prima facie case of race or disability discrimination or retaliation.
Further, the agency found that even assuming complainant established
a prima facie case of race or disability discrimination or retaliation,
she failed to show that the agency's articulated reasons for not selecting
her were a pretext for discrimination.
On appeal, complainant argues that she was also not selected for
numerous other positions. She also argues that an oral interview was not
necessary for the position, and that the testimony of the Acting Manager,
Distribution Operations, was wrong. Complainant also alleges that she
was subjected to discrimination by a co-worker.2 The agency requests
that we affirm its FAD.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). To prevail in
a disparate treatment claim such as this, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish
a prima facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case of
race or disability discrimination and retaliation,3 we find that the
agency offered legitimate, nondiscriminatory reasons for not selecting
complainant. Specifically, the Manager for the Vehicle Maintenance
Facilities at Pomona, California, and the selecting official (SO) in
this case stated in his affidavit that complainant was not selected
because of her failure to demonstrate her abilities to use reference
materials and manuals and to interpret instructions and specifications
in her application. He also said that complainant had lower ratings on
the other required knowledge, skill and ability requirements, which also
contributed to her non-selection.
In Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), the Supreme Court
held that to infer evidence of pretext from comparative qualifications,
complainant must show (1) that the disparities between the successful
applicant's and [her/his] own qualifications were "of such weight and
significance that no reasonable person, in the exercise of impartial
judgment, could have chosen the candidate selected over the [complainant]"
(Cooper v. Southern Co., 390 F.3d 695, 732 (2004)); or (2) that
[complainant's] qualifications are 'clearly superior' to those of the
selectee (Raad v. Fairbanks North Star Borough School Dist., 323 F.3d
1185, 1194 (9th Cir. 2003)); or (3) that "a reasonable employer would
have found the [complainant] to be significantly better qualified for
the job," along with other evidence (Aka v. Washington Hospital Center,
156 F.3d 1284, 1294 (C.A.D.C. 1998) (en banc)). We find that complainant
failed to do so. The record shows that complainant was rated 105.2
points on her Qualifications Rating Sheet for Best Qualified Positions
and was found to be deficient in the two sections as stated by the SO.
The record further shows that selectee1 was rated 128.4 points and
selectee2 was rated 144.8 points. Both of these candidates provided
detailed and comprehensive answers to the questions in the application
whereas some of complainant's answers were generally shorter and of less
substance. As such, we find that complainant failed to show that her own
qualifications were of such high quality to establish that the agency's
legitimate, nondiscriminatory reasons were a pretext for discrimination
or retaliation.
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant failed to establish by a preponderance of the evidence that
she was subjected to discrimination or retaliation as alleged.
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
___03-06-2008_______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 To the extent that complainant is alleging a claim of harassment,
she must raise this issue with an EEO Counselor. The record reflects
that this claim was not addressed in this case. Therefore, we decline
to consider the claim on appeal, as it is inappropriate for her to
raise this new claim for the first time as part of the current appeal.
See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004).
3 We assume without finding, for the purposes of analysis only, that
complainant is an individual with a disability as alleged.
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0120064646
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064646