01A12531
07-23-2002
Wilfred W. Valdez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wilfred W. Valdez v. United States Postal Service
01A12531
July 23, 2002
.
Wilfred W. Valdez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12531
Agency No. 1-D-251-0017-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. , Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. ,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Supervisor Distribution Operation, EAS-17, at the Processing and
Distribution Center, Corpus Christi, Texas, facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on March
28, 2000, alleging that he was discriminated against on the bases of
race (Caucasian), national origin (Hispanic), sex (male), disability
(unspecified), age (51), and reprisal (unspecified), when on or about
January 27, 2000, he learned he was not selected for the position of
Manager Distribution Operations (MDO).
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. On July 31,
2000, complainant requested a hearing before an AJ. On November 28,
2000, complainant withdrew his request for a hearing and requested a
final agency decision without a hearing.
In its FAD, the agency concluded that complainant failed to established a
prima facie case of discrimination based on race, sex, national origin,
age, disability or retaliation. The agency also concluded that the
agency articulated nondiscriminatory reasons for not selecting complainant
for the MDO position. Specifically, the agency noted that complainant
was not selected because he did not perform well during the interview
and his previous manager did not give a good recommendation to the
selecting official. The agency further concluded that complainant did
not met the burden of establishing that the agency's articulated reasons
were not credible or were a pretext for discrimination. Finally, the
agency concluded that complainant provided no evidence to refute the
agency's reasons for his nonselection.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue). A complainant must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
reason was a factor in the adverse employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802; Furnco Construction Corp v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action (s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has
offered the reason for its action, the burden returns to the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or the action
was influenced by legally impermissible criteria. Burdine, 450 U.S. at
253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo, that complainant established a prima facie case of
discrimination based on his race, sex, national origin, age, disability
or retaliation the Commission finds that the agency has articulated a
legitimate, nondiscriminatory reason for its actions. Specifically,
we find that complainant was not selected because he did not perform
well during the interview. The record reveals through the testimony
of the selecting official that complainant did not prepare well for
nor perform well during the interview process. The record reveals that
complainant had very limited knowledge, virtually none, of the Charleston
Plant's Performance. The record also reveals that during the interview
complainant was unable to articulate any plan to improve operations
in Charleston. The record further reveals that his demeanor during the
interview exhibited very little enthusiasm for the position. Finally,
the record reveals that previously complainant had been taken out of
the position of Acting MDO because he failed to perform.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the
Commission finds that the complainant has failed to do so. In reaching
that conclusion, we noted that complainant did not argue that he was
more qualified for the position nor that he performed well during
the interview. We find that complainant failed to prove that he
was more qualified than the selectees for the positions at issue.
The Commission notes that in nonselection cases, pretext may be found
where the complainant's qualifications are demonstrably superior to
the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
We conclude that complainant failed to show that the agency's action
was a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
July 23, 2002
__________________
Date