0120080838
08-12-2009
Luis Tenorio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Luis Tenorio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120080838
Hearing No. 450-2007-00267X
Agency No. 4G-760-0018-06
DECISION
On December 1, 2007, complainant filed an appeal from the agency's
November 15, 2007 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 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 order.
ISSUE PRESENTED
Whether substantial evidence in the record supports the AJ's finding
that complainant was not subjected to discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as the Manager of Customer Services, EAS-20, at the Haltom City, Texas,
Post Office. On January 22, 2007, complainant filed an EEO complaint
alleging that he was discriminated against on the bases of race/national
origin (Mexican/Hispanic), color (brown), age (54) and reprisal for
prior protected EEO activity [arising under Title VII]1 when:
(1) On September 14, 2006, complainant was not recommended as a
finalist for Position #12994, Postmaster, EAS-22, Grapevine;
(2) On January 27, 2007, complainant received a letter stating he
did not get Position #12947, Manager Customer Services EAS-22, Ridgelea
Station; and
(3) On February 8, 2007, complainant received a Letter of Warning
in Lieu of a Seven (7) Day Time-Off Suspension.
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 timely
requested a hearing and the AJ held a hearing on September 26, 2007 and
issued a decision on November 5, 2007.2
In her decision, the AJ found that complainant had established a prima
facie case of discrimination on the bases of race, color, national origin
and age but that he failed to establish a prima facie case with respect
to reprisal discrimination because there is no evidence that any of the
individuals involved were aware that he had engaged in protected EEO
activity. The AJ also found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to the
first promotion, complainant was not one of the top candidates for any
of the panel members, and was not referred to the selecting official.
One panel member (P1) testified that the biggest problem he noticed with
complainant's application was that he used the same answers to address
a few of the requirements, and did not appear to have put too much
effort into his application. As to the second position, a member of the
review committee (R1) also testified that he noticed that complainant's
application had the same responses to a couple of KSA's. R1 testified
that complainant was not among the top three candidates for any of the
panel members. The panel recommended four candidates to the selecting
official. Complainant was not among the recommended candidates.
As to the letter of warning, the agency explained the following: Due
to excess stock for September and salary advances outstanding over 60
days at the Haltom City Station, an Internal Control Financial Review
was conducted at Haltom City on October 24-26, 2006. On November 21,
2006, the Manager, Internal Control, issued a memo outlining the findings
of the review and recommendations. On December 5, 2006, the Customer
Service Operations Manager (CSOM) requested that complainant meet with
him for an investigative inquiry regarding the findings in the internal
control financial review as well as an AMSOP audit conducted in November
2006. On December 12, 2006, CSOM and complainant's supervisor met with
complainant and his representative to discuss the deficiencies.
Complainant testified that he offered an explanation for the noted
deficiencies and brought documentation for the financial deficiencies.
Complainant testified that the majority of deficiencies could be found at
any station. On January 22, 2006, CSOM issued to complainant a proposed
letter of warning in lieu of seven day suspension, citing unsatisfactory
management performance. CSOM testified that no audits were conducted on
any other stations under his supervision for the period he was CSOM from
April through November 2006, and no other stations received deficiency
reports such as this. Complainant's supervisor also testified that
he believed that the letter of warning was justified based on the
deficiencies noted in the financial review.
The AJ found that complainant did not meet his burden to establish
that such reasons were merely pretexts for discrimination. 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.
CONTENTIONS ON APPEAL
On appeal, complainant through counsel contends that there was more
than sufficient evidence to infer discrimination, and that the agency
officials' testimony is unreliable. Complainant contends that the
agency and the AJ relied primarily on obviously coached testimony by
panel members that complainant was not rated more highly because he used
the same responses for more than one rating factor. Complainant asserts
that there was nothing wrong with the answers he gave and in fact, he
was later promoted after submitting these same responses. Additionally,
he contends that the District Manager (DM), requested by both sides,
should have been approved as a witness. Complainant asserts that the
AJ's refusal to approve DM as a witness was a clear abuse of discretion
and fundamentally erroneous given the complaint and other evidence linking
her to the case. Complainant states that although the DM claimed that she
"was not involved in any way with the issues claimed by the Complainant,"
the record demonstrates that a detailed procedure was promulgated by DM
for submission of all selections for vacancies at the grades involved
in the instant case to her for prior approval by her and her superior.
Further, the agency did not deny that DM's prior approval was mandatory.
Complainant asks the Commission to make a finding of discrimination
and/or remand the case back to the Hearings Unit based on the failure
to allow DM to testify.
In reply, the agency contends that the AJ's finding that "there is no
evidence that [the agency official who issued the LOW] was aware that
complainant engaged in protected activity" is supported by substantial
evidence. As to the non-selections, the agency asserts that the AJ's
finding that "there is no evidence that any of the individuals on the
two panels were aware that complainant engaged in protected EEO activity"
is supported by substantial evidence. The agency additionally contends
that the AJ's finding that complainant did not establish pretext as to
any issue, is supported by substantial evidence. The agency notes that
complainant has not introduced any evidence that he was clearly better
qualified than the candidates who were selected for further consideration
for the positions at issue. As to the AJ's refusal to approve DM as
a witness, the agency contends that it was undisputed that DM was not
directly involved in taking the adverse actions and complainant had the
opportunity to cross examine and challenge the agency officials who did
take the adverse actions. The agency states that the AJ accepted the
assertions of the agency officials who took the adverse actions against
complainant, that neither DM nor anyone else directed or instructed them
to take the actions that they did. The agency asserts that therefore,
complainant has failed to show that the AJ abused her discretion in not
approving DM as a witness. The AJ asks the Commission to affirm the
final order.
ANALYSIS AND FINDINGS
Initially, we address complainant's contention that the AJ erred
by failing to approved witness DM. Administrative Judges have broad
discretion in the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-
MD-110) at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department
of the Navy, EEOC Request No. 05980746 (September 19, 2000). Here,
the responsible management officials testified (which testimony the AJ
found credible) that DM did not influence their decisions. In addition,
complainant testified that DM did not like him for more than one reason,
one of which had nothing to do with the EEO complaint process, i.e.,
the fact that on one occasion, DM thought complainant was saluting her,
which he denies he was doing. Based on the above, we discern no abuse
of discretion on the AJ's part in failing to approve her as a witness.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (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). 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, 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).
Here, the Commission assumes complainant is able to establish a prima
facie case of discrimination on the alleged bases as to all of the claims.
Although complainant contends that his responses to the questions were
appropriate and that the agency's testimony was clearly coached, the
agency's burden to articulate a legitimate, nondiscriminatory reason
is not onerous, and they have satisfied this burden by asserting
that complainant did not appear to have exerted a lot of effort on
his application since he used the same answers to address several of
the requirements. We also note that Complainant has not shown that
the disparities in qualifications between him and the selectees are "of
such weight and significance that no reasonable person, in the exercise
of impartial judgment, could have chosen the [selectee] over [him] for
the job in question." Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). Finally, we find that, with respect to the letter
of warning that complainant received, substantial evidence supports
the conclusion that complainant has not established pretext. In this
regard we note that complainant, as the Manager of Customer Services,
did not establish that he was not responsible for the deficiencies noted
in the financial review.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
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
_____8/12/09_____________
Date
1 Complainant alleges retaliation both for filing prior EEO complaints
and for being friends and being seen with an individual who was involved
in the EEO process. Complainant notes that he was not that individual's
representative.
2 The AJ indicated in her decision that two of the witnesses testified
telephonically "because of their locations", without the objection of
the parties. See Hearing Transcript (HT), at 6. The Commission has
held that testimony may not be taken by telephone in the absence of
exigent circumstances, unless at the joint request of the parties and
provided special conditions have been met. Louthen v. United States
Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006). We do not
discern exigent circumstances in this case. However, we also do not
discern any specific issues of credibility that might have been affected
by the taking of testimony telephonically. Under these circumstances,
the Commission finds that the taking of some testimony telephonically
constituted harmless error in this case. See Sotomayor v. Department
of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
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0120080838
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120080838