01980935
02-04-2000
Jagir Bhuller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Jagir Bhuller v. United States Postal Service
01980935
February 4, 2000
Jagir Bhuller, )
Complainant, )
) Appeal No. 01980935
v. ) Agency No. 1K201004196
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Jagir Bhuller (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Asian), national origin (Indian),
color (brown), reprisal (prior EEO activity), and age (date of birth:
March 2, 1942), in violation of Title VII of the Civil Rights Act of
1964, 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.<1>
Complainant alleges he was discriminated against when he became aware on
or about February 1, 1996, that he was not selected for the position of
Address Management Systems Specialist, EAS 15. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the FAD.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a PS-6 Training Technician, at the agency's Washington,
D.C. facility. On February 1, 1996, complainant learned that he was
not selected for the Address Management Systems Specialist position and
that the selectees were both younger white individuals. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on October 22, 1996. At the conclusion
of the investigation, complainant was sent a copy of the investigative
file with hearing rights attached. Having received no response within
the 30 day time limit for requesting a hearing, the agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of race, color, national origin, or age discrimination because
he presented no evidence that similarly situated individuals not in his
protected classes were treated differently under similar circumstances.
The FAD also found that complainant failed to establish a prima facie
case of reprisal discrimination because he did not show that a nexus
existed between his protected activity and his nonselection.
The FAD went on to conclude that management had articulated a legitimate
non-discriminatory reason for its action. Specifically, the selecting
official (SO: White, American, 50 at time of affidavit, prior EEO activity
not noted) testified that complainant was the least qualified of those
interviewed because he did not possess the necessary technical expertise.
The FAD noted that complainant failed to establish that his qualifications
were so plainly superior to that of the selectees to compel a finding
of pretext. The FAD concluded that complainant had therefore failed to
establish that he was discriminated against.
CONTENTIONS ON APPEAL
Complainant makes no contentions on appeal, except to note on his appeal
form that he is alleging a breach of a settlement agreement. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As an initial matter, we note that complainant alleges on appeal that
his appeal involves a breach of a settlement agreement. The record
contains a settlement agreement between the parties, signed on October
25, 1995. Therein, complainant agreed to withdraw six EEO complaints
from administrative case processing in all forums. In return, the
agency agreed that complainant would be "given priority consideration"
for the position of Address Management Systems Specialist, Vacancy No,
26-95, the position in question in this appeal. The agency also agreed
that complainant's name would be presented to the selecting official
and that if complainant was "equally qualified" he would be promoted to
the position. The agency further agreed that if complainant was not
equally qualified, he would be guaranteed a supervisory detail for a
term of at least one year, if one became available. The agreement went
on to list the areas that would be considered for the detail.
There is little else in the file relating to the settlement agreement.
A letter to complainant from the Senior EEO Complaints Processing
Specialist dated September 16, 1996, notes that the issue of non-selection
for the position of Address Management Systems Specialist should be
processed as a separate complaint, rather than a breach of settlement
allegation. An earlier letter, dated October 27, 1995, appears to be
the agency's attempt to gain a supervisory detail for complainant.
The only other statement relating to the settlement agreement, is the
box on the appeal form, checked off by complainant, which notes he is
alleging a breach of a settlement agreement.
EEOC regulations require that complainants notify the EEO Director,
in writing, of any alleged noncompliance with a settlement agreement
within 30 days of when complainant knew or should have known of the
alleged noncompliance. The agency must then resolve the matter and
respond to complainant, in writing. See 64 Fed. Reg. 37,644, 37,660
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.504). We assume from the existence of the October 27, 1995 letter
informing complainant that his allegation is not a breach allegation,
that both complainant and the agency complied with these provisions.
The regulations next require complainant to appeal to the Commission
if he is not satisfied with the agency's attempt to resolve the matter
within 30 days of his receipt of the agency's determination. Id.
Here, the agency's written response noting that the allegation raised
by complainant is not a breach allegation is dated September 16, 1996.
Although there is no receipt noting when complainant received this letter,
complainant did not appeal until November 10, 1997, more than a year
after the agency's response. Accordingly, complainant's appeal as it
relates to a breach of the settlement agreement is dismissed as untimely.
Turning now to the issue addressed in the FAD, i.e., whether complainant
established that his nonselection was discriminatory, in the absence
of direct evidence of discrimination or retaliation, the allocation of
burdens and order of presentation of proof in a Title VII or ADEA case
is a three-step process. McDonnell-Douglas Corp v. Green, 411 U.S. 792
(1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). Complainant has
the initial burden of establishing a prima facie case of discrimination.
A prima facie case of discrimination based on race, color, national
origin or age is established where complainant has produced sufficient
evidence to show that: (1) he is a member of a protected class; (2) he
was qualified for the position; (3) he was not selected for the position;
and (4) he was accorded treatment different from that given to persons
otherwise similarly situated who are not members of his protected group
or, in the case of age, who are considerably younger than he. Williams
v. Department of Education, EEOC Request No. 05970561 (August 6, 1998);
Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002 (September 18, 1996).
A prima facie case of retaliation is established where complainant
has produced sufficient evidence to show that: (1) he engaged in
protected activity; (2) the agency was aware of his participation in
the protected activity; (3) he was subjected to an adverse employment
action; and (4) a nexus exists between the protected activity and the
agency's adverse action. The necessary causal connection may be shown
by evidence that the adverse action followed the protected activity
within such a period of time and in such a manner that a reprisal motive
can be inferred. Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass. 1976), aff'd 545 F.2d 222 (1st
cir. 1976); Van Druff v. Department of Defense, EEOC Appeal No. 01962398
(February 1, 1999). Complainant may also meet his initial burden by
presenting other evidence that raises an inference of discrimination.
Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981). If the agency articulates a reason for its actions, the burden
of production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination or retaliation. Throughout, complainant retains the burden
of proof to establish discrimination by a preponderance of the evidence.
It is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis
in original). Moreover, in an ADEA case, the ultimate burden remains on
complainant to demonstrate, by a preponderance of the evidence, that age
was a determinative factor in the sense that "but for" his age, he would
not have been subjected to the action at issue. See Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998).
Despite the agency's conclusion to the contrary, we find complainant
has established a prima facie case of race, color, national origin,
and age discrimination. He is a member of each of these protected
groups, he applied and was qualified for the position<2>, and both
the selectees were of a different race/color and national origin, and
considerably younger than complainant.<3> Moreover, complainant also
established a prima face case of reprisal discrimination. He engaged
in prior protected activity of which the selecting official was aware.
Moreover, a nexus existed between his nonselection and his prior activity.
Complainant entered into a settlement agreement in which he agreed to drop
six EEO complaints in return for priority consideration for the position
in question during the same period he applied for the job. We find this
to be a sufficient time/manner nexus to establish a prima facie case.
The agency articulated a legitimate non-discriminatory reason for its
action. Specifically, SO testified that he told complainant during the
interview that the job was very technical and that complainant lacked
the expertise for the position. A memo from SO detailing the steps of
his selection process indicates that he felt complainant to have only a
limited understanding of the AMS (Address Management Systems) operation,
whereas the selectees (S1 and S2)<4> were both extremely proficient with
the AMS systems.
Because the agency articulated a legitimate non-discriminatory reason for
the selection of S1 and S2, complainant must demonstrate that this reason
is pretextual and/or that the agency was motivated by discriminatory
animus when it selected S1 and S2. In a non-selection case, pretext
may be demonstrated in a number of ways, including a showing that
complainant's qualifications are observably superior to those of the
selectee. Bauer v. Bailor, 647 F.2d 1037. 1048 (10th Cir. 1981); Williams
v. Department of Education, EEOC Request No. 05970561 (August 6, 1998).
Moreover, in this particular case, the settlement agreement makes clear
that if complainant was equally qualified, he would be chosen for one
of the positions. Although we have found the allegation of settlement
breach to be untimely, evidence that complainant was equally qualified
for the position would be probative in proving pretext.
A careful review of the vacancy announcement, complainant's application,
and the applications of S1 and S2 reveals, however, that complainant did
not establish that he was equally or more qualified than the selectees.
The job called for knowledge of policies and procedures related
to the Address Management and ZIP Code systems, among other things.
Although complainant worked for several months as an Address Management
Systems Specialist, he served on the detail several years prior to the
selection. S1, on the other hand, worked with the AMS database for 11
years and was a general clerk with AMS at the time of the selection.
S2 was nearing the end of a two- year detail as an Address Management
Systems Specialist for the Capital District AMS unit at the time of the
selection. While S2's qualifications do not seem very different than
complainant's, complainant bears the burden of proof and we find he did
not establish that he was equally qualified, much less better qualified,
than the selectees. Complainant also did not offer any other evidence
to establish that the agency's articulated reason was pretextual or that
discrimination was the true reason for his non-selection.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
02/04/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Despite the statement in the FAD that complainant was not qualified,
SO stated that he considered complainant and the other 5 individuals
interviewed to be "worthy" candidates, as opposed to the unqualified
applicants whom he did not interview.
3 The investigative report failed to clearly note the characteristics
of the selectees. Rather then list the selectees/interviewees and their
characteristics, the report simply notes that they are "White/White
Americans, except one who is Black/Light Skin/American." The report
then lists a number of ages "respectively." Although this is a less than
satisfactory method of relaying information, it appears that none of the
selectees or interviewees were of complainant's protected classes and
that all were considerably younger then he (complainant was 54 at the
time of the investigation and the oldest selectee/interviewee was 44).
Thus, we are not prevented from analyzing this case herein.
4 As noted previously, there is no clear indication of the selectees'
characteristics. It appears that S1 was 43 at the time of the
investigation and S2 was 44. Either one or both are White/white,
American. The other may be Black/light-skinned, American, although
complainant alleged both were Caucasians.