0120090509
06-04-2010
Gabriel R. Arsola, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Gabriel R. Arsola,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120090509
Agency No. 4G-870-0017-08
DECISION
On November 5, 2008, complainant filed an appeal from the agency's October
1, 2008 final decision concerning his 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
ISSUES PRESENTED
Whether complainant established by a preponderance of the evidence that
he was retaliated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Sales and Service Associate at the Silver City, New Mexico Post
Office. The record reveals that complainant applied for the position
of Supervisor, Customer Service, Position No. SW-07165, under Vacancy
Announcement No. 226749 (the position). On May 19, 2008, complainant
filed an EEO complaint alleging that he was discriminated against on the
basis of reprisal for prior protected EEO activity when, on December 3,
2007, he was not given the opportunity to interview for the position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit a brief or any statements on appeal. However,
complainant submitted numerous statements from witnesses stating that
the selectee for the position was pre-selected. The agency requests
that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of review
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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Disparate Treatment
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).
He must generally establish a prima facie case by demonstrating that
he 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, because 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, 143 (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).
We turn to whether the agency articulated a legitimate, nondiscriminatory
reason for its actions. Specifically, the SO provided affidavit testimony
that he provided complainant with two opportunities to interview for
the position. Report of Investigation (ROI) at 95. The first time the
SO called to conduct the interview, complainant informed him he was on
annual leave. Id. Although the SO offered complainant to conduct the
interview over the phone, complainant declined. Id. Upon complainant's
return to work, the SO requested another interview at the end of the
work day. Id. Complainant informed the SO that he was unable to
do so. Id. Further, complainant failed to reschedule the interview.
Id. at 97. Accordingly, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions.
We now consider whether complainant established that the agency's
proffered reasons are a pretext for retaliation. In support of his
contentions, complainant argues that the selectee was pre-selected.
While we are not convinced that preselection occurred, we note that we
have held that pre-selection, per se, does not establish discrimination
under Title VII when it is based on qualifications of the selected
individual and not some basis prohibited by Title VII. McAllister
v. United States Postal Service, EEOC Request No. 05931038 (July 28,
1994). Because we find that complainant has failed to offer probative
evidence demonstrating that the SO's decision not to interview him
was motivated by a prohibited basis under Title VII, we find that,
even if the selectee were pre-selected, no discrimination occurred.
Ultimately, the agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of
the Treasury, EEOC Request No. 05940906 (January 16, 1997). Therefore,
the Commission finds that complainant failed to show that the agency's
proffered reasons are pretext for discrimination. Accordingly, we
find complainant failed to prove that he was discriminated against as
alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 4, 2010
Date
2
0120090509
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090509