0120092695
06-11-2010
Henry M. DeLaTorre, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Henry M. DeLaTorre,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120092695
Hearing No. 550-2009-00143X
Agency No. 4F-956-0179-07
DECISION
Complainant filed an appeal from the agency's April 3, 2009 final order
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. For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Manager, Customer Service, at the agency's Hughes Station facility
in Fresno, California. On November 25, 2007, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of
race/national origin (Hispanic)1 when:
1. On August 9, 2007, complainant was told that his request for
a lateral transfer to the position of Postmaster, Clovis California,
was denied.
2. On various occasions, complainant was denied OIC/detail
assignments.
3. On December 18, 2007, complainant was notified that he was not
selected for the Selma Postmaster position.
By letter dated December 24, 2007, the agency dismissed claim (2) for
untimely EEO Counselor contact. The agency found that complainant failed
to specify the dates upon which he learned that his requests for Officer
in Charge (OIC) or detail assignments to other positions had been denied.
Accordingly, the agency found that the incidents to which complainant
refers in claim (2), did not occur within 45 days of complainant's initial
request for counseling on August 21, 2007. The agency therefore dismissed
claim (2) pursuant to 29 C.F.R. �1614.107(a)(2).2 The agency accepted
the remaining claims for investigation.
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). Complainant requested
a hearing. The AJ assigned to the case determined sua sponte that the
complaint did not warrant a hearing and over the complainant's objections,
issued a decision without a hearing on March 16, 2009.
In her decision, the AJ found the following facts were undisputed.
Complainant applied for the position of Postmaster of the Clovis,
California post office in March 2007. Complainant was subsequently
informed that the vacancy announcement did not draw the number of
applicants the selecting official (S1) desired, and so, the position
was reposted for applications.3 Complainant requested that the agency
consider his application for a non-competitive re-assignment to an EAS-22
level Postmaster position. Complainant received an interview, but the
selecting official notified complainant that he would not be selected
for the Clovis position. The selecting official (S1) stated that he
believed complainant did not possess the leadership skills necessary to
deal with the issues at the Clovis Post Office. Further, the AJ noted
that S1 explained that complainant's answers to the interview questions
did not persuade S1 that complainant would be successful in the position
if selected. The AJ found no dispute that no selection for the Clovis
postmaster position was made in 2007. Further, the AJ found that though
complainant disagreed with S1's evaluation of his skills, nothing in
the evidence showed that complainant's national origin (Hispanic) played
any role in S1's decision not to select complainant for the position.
With respect to the Selma Postmaster position, the AJ found that again,
complainant received an interview for the position, but was not selected.
The AJ noted that S2, the selecting official, explained that he found the
selectee, E1, was more suitable for the Selma Postmaster position based
upon his answers to S2's interview questions. Further, the AJ observed
that S2 had made several postmaster selections in 2007 through 2008 and
that S2 has selected two Caucasian females, one Asian male (E1), and two
Hispanic females for similar positions. The AJ found that complainant
presented no evidence that S2's explanation for his selection of E1 was
a pretext to mask discrimination.
Accordingly, the AJ found the material facts were undisputed and
that taking every reasonable inference in the light most favorable to
complainant, complainant did not show that his national origin (Hispanic)
motivated the agency's decisions. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
On appeal, complainant states that the AJ's decision fails to explain
why complainant's request for a downgrade or lateral reassignment was
denied while other employees, not in his race/national origin protected
class were granted their requests for lateral transfers and downgrades.
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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
We find AJ properly issued her decision without a hearing. We concur with
the AJ that the material facts are undisputed. We find no dispute that
complainant applied for and was qualified for the position of postmaster
for both the Clovis Post Office and for the Selma Post Office. Further,
neither party disputes that no selection was made for the Clovis Post
Office in 2007. We find nothing in the record shows that complainant's
application was treated differently than that of any other applicant,
nor that applicants outside of complainant's protected classes received
preferential treatment with respect to the Clovis position in 2007.
We note that with respect to claim (3), we find that both complainant
and the selectee, E1, applied for the position and both were qualified.
We do not find that complainant's qualifications were plainly superior to
those possessed by E1 and we decline, as did the AJ, to second guess S2's
determination that E1 was the best qualified candidate for the position of
Postmaster at the Selma Post Office based upon the applications submitted
and upon S2's evaluations of the candidates' interviews.
CONCLUSION
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 11, 2010
__________________
Date
1 Complainant's complaint and various agency documents, list the basis
of his claims as race (Hispanic). The AJ reframed the basis of the
complaint as race/national origin (Hispanic).
2 We find the AJ did not address claim (2) in her decision and complainant
does not challenge the agency's dismissal of claim (2) on appeal.
Therefore claim (2) is not at issue in this decision.
3 The record shows that the position of Postmaster for the Clovis Post
Office was reposted a number of times before a candidate was selected
in May 2008. Complainant subsequently filed an additional complaint
in which he alleged discrimination after learning that a candidate had
been selected. Complainant appealed the agency's decision regarding
that complaint, docketed by the Commission as Henry DeLaTorre v. United
States Postal Service, EEOC Appeal No. 0120092694.
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0120092695
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092695