01A10752
04-24-2002
Garry A. Rodriguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Garry A. Rodriguez v. United States Postal Service
01A10752
April 24, 2002
.
Garry A. Rodriguez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A10752
Agency No. 1A-073-0007-99
Hearing No. 170-AO-8327X
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that, during the relevant time, complainant was
employed as an EAS-16, Supervisor, Business Mail Entry at the agency's
International and Bulk Mail Center (BMC) facility in New Jersey.
The record reflects that in January 1995, complainant's supervisor
(S1: White male) appointed him to a detail assignment in the position
of EAS-19, Marketing Services Specialist at the BMC. Complainant
worked in this detail for a year and a half, reporting directly to S1.
During complainant's detail assignment, the BMC received word that a major
mailer would be bringing a large amount of mail to the BMC. S1, who was
on travel at the time, directed complainant to obtain some information
from the mailer. Complainant telephoned the mailer and left a message.
When the mailer returned the call, complainant was not there because
he had already left for the day. S1 was upset to learn that despite
his instructions complainant had left work that day without speaking
to the mailer. Without waiting to return off of travel, S1 removed
complainant from his detail assignment and returned him to his position
as Supervisor of Bulk Mail Entry. It is uncontroverted that this is
the reason complainant was removed from his detail assignment.
In late 1996, the agency posted a vacancy announcement for the position
of EAS-19, Marketing Services Specialist. Complainant applied for the
position and was interviewed. S1 decided not to fill the vacancy at
that time. As a result, no one was selected for the position in either
1996 or 1997.
The record also reflects that subsequent to his detail in the Marketing
Services Specialist position, complainant served in three additional,
high level details: as an EAS-20, Manager, Business Center, from July
1997 through August 1997; as an EAS-18, Manager, Consumer Affairs,
in August 1997; and as an EAS-20, Manager, Business Mail Entry, from
November 1997 through February 1998. In June 1998, complainant was
promoted to the position of EAS-21, Classification Support Specialist,
at the Rates and Classifications Service Center in New York.
On July 6, 1998, the Agency posted a vacancy announcement for the position
of EAS-19, Marketing Services Specialist, at the BMC. Complainant applied
and was interviewed by a three member review committee. The review
committee recommended complainant, and two other candidates (a White
female and a White male) to S1. S1 selected the White female for the
position. Complainant filed a formal EEO complaint on March 18, 1999,
alleging that the agency had discriminated against him on the bases of
national origin (Hispanic) and sex (male) when on October 7, 1998, he was
not selected for the position of EAS-19, Marketing Services Specialist.
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 established a prima facie case of
national origin and sex discrimination because he showed that: (1) he was
a member of a statutorily protected class; (2) he timely applied for the
position in question and was found to be minimally qualified; and (3) the
selectee, a non-Hispanic female, was not a member of his protected class.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
selectee's qualifications were substantial and similar to those of
the complainant. 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/retaliation. In reaching this conclusion,
the AJ found that complainant did not show that his qualifications were
plainly superior to those of the selectee.
The agency's FAD implemented the AJ's decision. On appeal, complainant
contends that the AJ erred when she found that the agency articulated
a legitimate, nondiscriminatory reason for not selecting him for the
Marketing Services Specialist position. The agency requests that we
affirm the FAD.
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.
The Commission agrees with the AJ and finds that complainant did not
proffer evidence that the agency discriminated against him based on his
national origin and/or sex. In reaching this conclusion, the Commission
notes that complainant contends that the agency did not show that the
selectee's experience substantially outweighed his. However, that is not
the agency's burden under Title VII. In fact, should the complainant
attempt to establish pretext by claiming that his qualifications are
superior to those of the selectee's, complainant has the burden of
proffering evidence that his qualifications are superior.
Based on the foregoing, and after a careful review of the record, the
Commission finds that grant of summary judgment was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.
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
April 24, 2002
__________________
Date