Luis Tenorio, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionAug 12, 2009
0120080838 (E.E.O.C. Aug. 12, 2009)

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

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Office of Federal Operations

P.O. Box 77960

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