0120093180
02-27-2012
Robert H. Vunder, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters) Agency.
Robert H. Vunder,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters)
Agency.
Appeal No. 0120093180
Hearing No. 320-97-5309X et al.
Agency No. HO-000-0151-94 et al.
Complainant timely filed an appeal from the Agency’s June 19, 2009,
final decision 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., 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 Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant
was not subjected to unlawful discrimination when it did not select him
for 27 various positions.
BACKGROUND
The record reveals that Complainant became a Postal Career Executive
Service (PCES) employee in August 1987, when he was selected as the Field
Director of Marketing and Communications for the Santa Ana Division.
Previously, Complainant served as Superintendant of Postal Operations,
Executive and Administrative Schedule (EAS)-16, for more than two
years; Postmaster of West Jordan, Utah, for one and one-half years;
and Postmaster of Provo, Utah, EAS-24, for almost two years.
In 1992, the Agency went through an extensive, nationwide
restructuring directed by the then-Postmaster General. At the time
of the restructuring, Complainant was one of three PCES employees on
special assignment in Olympic Marketing at Postal Service Headquarters.
Complainant’s assignment in Olympic Marketing ended in late Summer 1992.
Complainant and two other PCES incumbents did not have retreat rights
to the positions they held prior to accepting these assignments, and
thus were without positions when the restructuring occurred. Further,
Complainant’s Field Director position was abolished and replaced with
an EAS position.
One feature of the restructuring included a significant reduction in
the number of PCES positions. In order to fill the remaining executive
positions, the Agency issued guidelines on August 13, 1992, entitled
“Filling Critical Vacancies,” which outlined the procedures to be
used, and on August 25, 1992, all PCES employees, including Complainant,
were asked to prepare abbreviated resumes and to submit them to the
General Manager of the PCES Division so they could be considered for
available PCES positions in the new organizational structure. However,
Complainant and 200 of his colleagues were not placed in a PCES position.
Complainant was placed in an EAS position as Postmaster at Sandy, Utah
on January 23, 1993, with saved grade and pay and some PCES benefits.
Complainant filed an EEO complaint (Agency No. HO-000-0151-94)
alleging that the Agency discriminated against him on the bases of race
(Caucasian), national origin (Danish-American), sex (male), disability
(Depression), age (born September 20, 1954), and in reprisal for prior
protected EEO activity when:
1. On January 9, 1993, the Agency failed to select him for the position
of Manager of Customer Service Support, Southwest Area;
2. On February 19, 1994, the Agency failed to select him for the position
of Sales Manager, Southeast Area;
3. On December 26, 1992, the Agency failed to select him for the position
of Postmaster, Bronx, New York;
4. On September 17, 1994, the Agency failed to select him for the position
of Manager of Delivery Programs Support, Great Lakes Area;
5. On December 26, 1992, the Agency failed to select him for the position
of Postmaster, Indianapolis, Indiana;
6. On January 23, 1993, the Agency failed to select him for the position
of Manager of Bulk Mail Center, San Francisco, California;
7. On September 17, 1994, the Agency failed to select him for the position
of District Manager, Salt Lake District;
8. On October 15, 1994, the Agency failed to select him for the position
of District Manager, Long Beach District;
9. On September 17, 1994, the Agency failed to select him for the position
of PCES on Special Assignment, San Francisco;
10. On January 9, 1993, the Agency failed to select him for the position
of Postmaster, Milwaukee, Wisconsin;
11. On September 17, 1994, the Agency failed to select him for the
position of District Manager, Van Nuys District;
12. On January 9, 1993, the Agency failed to select him for the position
of Manager of Operations Program, Pacific Area;
13. On December 26, 1992, the Agency failed to select him for the position
of Postmaster, Cleveland, Ohio;
14. On March 5, 1994, the Agency failed to select him for the position of
Manager of Processing and Distribution Center, West Palm Beach, Florida;
15. On January 9, 1993, the Agency failed to select him for the position
of Postmaster, Fort Lauderdale, Florida;
16. On December 26, 1992, the Agency failed to select him for the position
of Postmaster, Seattle, Washington;
17. On January 9, 1993, the Agency failed to select him for the position
of Postmaster, Atlanta, Georgia;
18. On January 9, 1993, the Agency failed to select him for the position
of PCES on Special Assignment, Hawaii;
19. On August 6, 1994, the Agency failed to select him for the position
of Manager of Marketing, Communications, and Special Events; and
20. On October 1, 1994, the Agency failed to select him for the
position of Manager of Processing Distribution Center, City of Industry,
California.
Procedural Background
Initially, eleven of the aforementioned claims were dismissed as initiated
by untimely EEO Counselor contact, and nine claims were dismissed
for failure to state a claim. The Commission vacated the dismissals
and remanded the claims to the Agency to supplement the record with
information concerning PCES selection procedures. Vunder v. U.S. Postal
Serv., EEOC Appeal No. 01953669 (Aug. 16, 1995).
In another formal complaint (Agency No. HO-000-0132-95), Complainant
further alleged that the Agency subjected him to discrimination on the
bases of age, disability, and in reprisal for prior EEO activity when,
in January 1995, the Agency failed to select him for the position of
Manager of Merchandise Products, Headquarters (claim 21).
Complainant filed a complaint (Agency No. HO-000-0133-95) in which he
alleged that he was subjected to discrimination on the basis of race,
national origin, age, and in reprisal for prior EEO activity when on
February 3, 1995, the Agency failed to select him for the position of
District Manager, Louisiana District (claim 22).
In Agency No. HO-000-0169-95, Complainant further alleged that the
Agency subjected him to discrimination on the bases of national origin,
age, disability, and in reprisal for prior EEO activity when on May 13,
1995, the Agency failed to select him for the position of Postmaster,
Houston, Texas (claim 23).
Additionally, Complainant alleged in Agency No. HO-000-0048-96 that the
Agency subjected him to discrimination on the bases of race, national
origin, age, and in reprisal for prior EEO activity when, on August 5,
1995, the Agency failed to select him for the position of Senior Plant
Manager in Sacramento, California (claim 24); on September 6, 2005, the
Agency failed to select him for the position of Postmaster in Cleveland,
Ohio (claim 25); on September 30, 1995, the Agency failed to select him
for the position of Manager of Customer Service for the Alleghany Area
(claim 26); and the Vice President of Sales told another employee that
he was the reason Complainant was not considered for a PCES position
(claim 27).
On April 3, 1998, the Agency dismissed Complainant’s complaints on
various procedural grounds. On January 18, 2008, the Commission reversed
the Agency’s dismissals and remanded Complainant’s complaints to
the agency for further processing. Vunder v. U.S. Postal Serv., EEOC
Appeal No. 01984457 (Jan. 18, 2000).
Additionally, Complainant, as class agent, filed multiple class complaints
of unlawful employment discrimination in violation of Title VII, the ADEA,
and the Rehabilitation Act.
The Agency characterized the class complaints (filed on May 3, August 3,
and August 11, 1995, and February 21 and April 15, 1996) as alleging
that the classes were discriminated against:
A. On the basis of age, in that the Postal Career Executive Service
(PCES) selection procedures adversely impacted Complainant and
others placed in Employee Administrative Service (EAS) positions;
B. On the basis of age, in that Complainant learned that there was
an approximately $10,000 difference between the salaries of PCES
executives in PCES positions and PCES executives in EAS positions;
C. On the basis of age, in that a document called “Executive
Choices” was sent to PCES executives in PCES positions but not to PCES
executives in EAS positions, excluding them from the program;
D. On the basis of age, in that the Provisional Marketing
Reorganization had a disparate impact on PCES executives holding EAS
positions; and
E. On the bases of national origin, age, disability, and reprisal
for EEO activity, in that the Corporate Succession Planning process had
a disparate impact on PCES executives holding EAS positions.
The Agency dismissed the class complaints on April 4, 2000, on the
bases that the class complaints did not meet the prerequisites for
class certification, and that the complaints failed to state a claim.
Complainant appealed the dismissal, and on September 18, 2002, the
Commission vacated the Agency’s dismissals and remanded the complaints
to an AJ to determine whether the complaints should be certified as
class complaints. In a subsequent appellate decision, the Commission
ordered the Agency to subsume the aforementioned claims identified above
within Complainant’s request for certification, in accordance with EEOC
Management Directive for 29 C.F.R. Part 1614 (MD-10), Chapter 8, § III(C)
(Nov. 9, 1999). Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A23564
(Oct. 27, 2003).
The Agency consolidated the claims into Case Number HO-000-0151-94,
investigated the complaints and transmitted the report of investigation
to Complainant and his attorney. Complainant requested a hearing before
an EEOC Administrative Judge (AJ).
On August 19, 2004, an AJ issued a decision in which he denied class
certification for all of the pending class actions, and the Agency
implemented that decision on October 11, 2004. Complainant appealed. The
Commission affirmed the Agency's final order implementing the AJ’s
decision to deny class certification. Vunder, et al. v. U.S. Postal
Serv., EEOC Appeal No. 0120050474 (April 12, 2007). Because Complainant
had previously withdrawn his request for a hearing on the aforementioned
five individual complaints, the Agency issued a final decision on
Complainant’s complaints.1
Final Agency Decision
The Agency’s final decision dismissed claims 9 and 18 for failure to
state a claim because “neither of these assignments was available
to anyone else in the Postal Service [except for the selectees
non-competitively placed in them], the complainant [therefore] cannot
be considered to have suffered a real or tangible effect on any term,
condition, or privilege of his employment.” The Agency also dismissed
13 of Complainant’s claims on the basis that they were initiated by
untimely EEO counselor contact. Alternatively, the Agency addressed
the merits of each claim and concluded that Complainant failed to prove
that the Agency subjected him to unlawful discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly dismissed
his complaints on the basis that they were untimely and failed to state
a claim because he had already requested a hearing. Regarding the
merits of his complaints, Complainant further contends that the Agency
improperly found no discrimination. Complainant contends that although
the Agency’s final decision concluded that record evidence reflected
that the selectees for various positions Complainant sought were highly
qualified, the Agency file did not contain the selection process used
in each of the selections. Additionally, Complainant maintains that
the Agency’s conclusion that the selectees for the positions were
highly qualified compared to Complainant was “specious” because he
held the position of PCES Executive on Special Assignment to the Office
of Olympic Marketing from December 16, 1989, until January 22, 1993.
Regarding Complainant’s non-selection for a Postmaster position
in Atlanta, Complainant contends that the selectee for this position
previously was not in a PCES position and had no Postmaster experience,
whereas Complainant was “a proven PCES Executive” who occupied
numerous Postmaster positions during his career. The Agency did not
raises any arguments on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and
that EEOC “review the documents, statements, and testimony of record,
including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own
assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental
Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, he 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 consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
For instance, to establish a prima facie case of reprisal, Complainant
must show that (1) he engaged in protected EEO activity; (2) the Agency
was aware of the protected activity; (3) subsequently, he was subjected
to adverse treatment by the Agency; and (4) a nexus exists between his
protected activity and the adverse treatment. Whitmire v. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reason(s) for its action was a
pretext for discrimination. At all times, Complainant retains the burden
of persuasion, and it is his obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In this case, for purposes of analysis, we assume that Complainant
established a prima facie case of discrimination for each alleged
matter.2 Nonetheless, we find that the Agency provided legitimate,
non-discriminatory reasons for its actions, as explained in detail below.
Claim 1
For claim 1, the Agency stated that the selectee (S1) was chosen for the
Southwest Area Customer Service Support position because he had previous
experience as a Superintendent of Postal Operations; was in Succession
Planning for Delivery and Retail Operations, Marketing, Mail Processing,
and Transportation Management; was detailed as an Area Manager of Customer
Service Support and Officer-in-Charger of a large Silver Spring, Maryland
post office; and had many more years of such experience than Complainant.
Claim 2
The Agency stated that the selectee for the Southeast Area Sales Manager
position was chosen because she held PCES positions as Field Director
for Marketing and Communications, National Accounts Representative,
Manager of Commercial Accounts, Senior Customer Service Representative,
and Supervisory Customer Service Representative. The Agency further
stated that the selectee was in Succession Planning for the Southeast
Area Sales Manager position and had over 12 years of experience in sales
and marketing, whereas Complainant only had three years experience in
sales and marketing.
Claim 3
The Agency stated that the selectee for Bronx Postmaster was chosen
because he was an Area Manager and Operations Manager and had experience
in delivery and retail. The Agency further stated that the selectee
had more current Field Division Management experience than Complainant.
Claim 4
The Agency stated that the selectee for the Delivery Programs Support
position was chosen because he had been an Area Manager and Operations
Manager and had over 12 years of delivery experience, four years in
Field Division management, and had been detailed to PCES Field Director,
Field Operations, and Officer-in-Charge positions.
Claim 5
The Agency stated that the selectee for Indianapolis Postmaster was
chosen because she had been a PCES executive since 1985, held the PCES
positions of Management Sectional Center Manager/Postmaster, had 11
years experience in Labor and Grievance/Arbitration, and had been the
East Lansing Postmaster. The Agency further stated that the selectee
had been detailed to a PCES Field Director position and to every MSC
Director position.
Claim 6
The Agency stated that the selectee for the Bulk Mail Center Manager (BMC)
position was chosen because she had been the Manager of the San Francisco
Air Mail Center (AMC) and the Operations Manager for the Air Mail Center.
The Agency further stated that the selectee had been detailed for five
months as the Manager of the Bulk Mail Center, had 15 years experience
in Mail Processing, and had eight years experience in Logistics and
Transportation Management. The Agency stated that Complainant had no
experience in AMC or BMC operations.
Claim 7
The Agency stated that the selectee for the Salt Lake City District
Manager position was chosen because he had been the Management Sectional
Center Manager/Postmaster in Fairbanks, Alaska; the Management Sectional
Center Manager/Postmaster for Colorado Springs, Colorado; and a District
Manager. Additionally, the Agency stated that the selectee had served
as a Finance District Manager, a Station Manager, Industrial Engineer,
and a Quality Control Officer.
Claim 8
The Agency stated that the selectee for the Long Beach District Manager
position was chosen because he previously served as Post Office Operations
Manager, MSC Director, PCES Field Director, and Van Nuys Postmaster.
The Agency also stated that the selectee’s career involved supervision
and management assignments at every level of the organization and
extensive experience in delivery and retail operations.
Claim 9
The Agency stated that the selectee for the PCES special assignment
was chosen because this position was created for the selectee to
“outplace” him from his former assignment as an Area Manager
of Processing and Distribution. The Agency further stated that the
selectee was previously the Field Director of Operations Support, Division
General Manager/Postmaster, and Regional Director of Operations Support.
Additionally, the Agency stated that the selectee had 18 years experience
in in-plant processing, 10 years experience in logistics and mail
processing, and up to four years experience in eight other disciplines.
Claim 10
The Agency stated that the selectee for Milwaukee Postmaster was chosen
because he had successfully completed details as a Director of City
Operations, served as Officer-in-Charge in two offices, and was a Manager
of Delivery Programs.
Claim 11
The Agency stated that the selectee for Van Nuys District Manager was
chosen because he had served as Post Office Operations Manger and
Officer-in-Charge and had eight years experience in Field Division
Management and Delivery and Retail Operations.
Claim 12
The Agency stated that the selectee for Delivery Programs Support Manager
was chosen because he had extensive experience in Delivery and Retail
Operations and had served as a Delivery Programs Manager, Area Manager,
and Station Manager.
Claim 13
The Agency stated that the selectee for Cleveland Postmaster was chosen
because he was the Virginia Beach, Virginia Postmaster and Northern
Virginia District Manager.
Claim 14
The Agency stated that the selectee for West Palm Beach Manager of
Processing and Distribution was chosen because he was already a PCES
executive and had served as a Processing and Distribution Manager.
Further, the Agency stated that the selectee was a Tour Superintendent.
Claim 15
The Agency stated that the selectee for Fort Lauderdale Postmaster was
chosen because he was the Midland, Texas Postmaster for two and a half
years, an MSC Director of Field Operations for two and a half years,
a Distribution Manager for three and a half years, and an MSC Mail
Processing Director for one and a half years.
Claim 16
The Agency stated that the selectee for Seattle Postmaster was chosen
because he had been the Postmaster of Everett, Washington and Kirkland,
Washington and Superintendant of Postal Operations. The Agency further
stated that the selectee had experience in finance and postal accounting
as a Postal Systems Examiner.
Claim 17
The Agency stated that the selectee for Atlanta Postmaster was chosen
because he had been Postal Inspector, Program Manager, and Project
Coordinator. The Agency stated that the selectee’s experience as a
Postal Inspector gave him experience in operations and financial audits
and the management of those disciplines.
Claim 18
The Agency stated that the selectee for Hawaii PCES special assignment
was chosen because he was a former Area Manager of Customer Service
and Sales for the Southeast Area, and his position was abolished.
The Agency stated that this position was created for the selectee
so that he could be near the area where he would retire. The Agency
further stated that the selectee had been a PCES executive since 1985,
was a Division Manager/Postmaster, and had assignments as District and
MSC Directors and an EEO Specialist.
Claim 19
The Agency stated that the selectee for Marketing, Communications, and
Special Projects Manager was chosen because he had worked as a White
House Communications Specialist and Director of Communications in the
Office of the President.
Claim 20
The Agency stated that the selectee for Processing and Distribution
Manager was chosen because he served as a Regional Automation Advisor,
which is a position directly involved with Processing and Distribution
Centers and essential to the successful deployment and utilization of
automated mail processing equipment.
Claim 21
The Agency stated that the selectee for the position of Headquarters
Manager of Merchandise Products was chosen because he had previously
worked with the Selecting Official serving hundreds of customers and
developed a business plan for FASTNET. The Selecting Official stated
that he was not aware that Complainant was even interested in this
position and did not consider Complainant for the position.
Claim 22
The Agency stated that the selectee for Louisiana District Manager
was chosen because he had been a Delivery Analyst, Injury Compensation
Specialist, Superintendent of Postal Operations, Station Manager, Customer
Services Manager, Postmaster, and Postal Office Operations Manager.
Additionally, the Agency stated that the selectee had been detailed
as Delivery Programs Manager, District Manager, and Field Director.
Further, the Selecting Official stated that he received a Succession
Planning list from Corporate Personnel Operations of employees who had
been identified as successors for the District Manager position. He
stated that Complainant was not on this list, but the selectee's name
was included. The Selecting Official also stated that the selectee had
previously worked for him as the Manager of Post Office Operations for
nearly two years and was a "known quantity” he knew who could get the
job done.
Claim 23
The Agency stated that the selectee for Houston Postmaster was
chosen because he had been the Customer Service Support Manager for
the Southwest Area since 1993, Officer-in-Charge in Houston, Postal
Operations Superintendent, Stations Manager, MSC Manager, and the Area
Customer Service Support Manager. Additionally, the Agency stated
that the selectee had been detailed as Silver Spring Postmaster and had
experience in succession planning.
Claim 24
The Agency stated that the selectee for the position of Sacrament Senior
Plant Manager was chosen because he was the PCES Plant Manager in San
Bernardino, California and General Mail Facility Operations Manager in
Van Nuys. Additionally, the Agency stated that the selectee successfully
completed detail assignments as an Officer-in-Charge of a large postal
facility and served on a cost-containment task force. The Selecting
Official stated that the individuals considered for the vacancy were in
succession planning for a Mail Processing position, but Complainant was
not considered because he was not in succession planning for the position.
Claim 25
The Agency stated that the selectee for Cleveland Postmaster was chosen
because he had been a Postmaster and Superintendent of Postal Operations.
Claim 26
The Agency stated that the selectee for the position of Manager of
Customer Service for the Alleghany Area was chosen because he had been a
Customer Service Support Manager for a District office and held detail
assignments as an Area Manager and Manager in Commercial Accounts.
Additionally, the Agency stated that Complainant was not in succession
planning for this position and was therefore was not considered.
Claim 27
Complainant alleged that the Vice President of Sales told the Chicago
District Manager of Customer Service Support that Complainant would
not receive a PCES position because of his influence.3 The Customer
Service Support Manager stated that the Vice President of Sales told
him that Complainant’s decisions in Olympic Marketing had an effect
on his (Complainant’s) ability to obtain a PCES position during the
restructuring, and he told Complainant what the Vice President of Sales
said. Another person whom Complainant claimed heard the Vice President
of Sales make comments about Complainant’s inability to obtain a PCES
position stated that he could not recall any conversations with the Vice
President of Sales about Complainant. Additionally, the Vice President
of Sales denied making any comment that communicated that he was the
reason why Complainant could not obtain a PCES position.
Pretext
In a nonselection case, pretext may be demonstrated in a number of
ways, including a showing that a complainant's qualifications are
observably superior to those of the selectee. Bauer v. Bailor, 647
F.2d 1037. 1048 (10th Cir. 1981); Williams v. Dep’t of Education,
EEOC Request No. 05970561 (Aug. 6, 1998). In this case, Complainant
contends that he should have been selected for the positions at issue
because he had been a PCES Executive who worked on a Special Assignment
with the Office of Olympic Marketing. However, a review of the record
reveals that the selectees possessed a wide array of qualifications
and experience, including experience as the Director of Communications
for the Office of the President; Postmaster; Customer Service Manager;
Senior Plant Manager; Bulk Mail Center Manager; Air Mail Center Manager;
Director of City Operations; Area Manager of Customer Service and Sales;
MSC Manager; Field Director for Marketing and Communications; and Regional
Director of Operations Support. Moreover, contrary to Complainant’s
assertion, there is no evidence that Complainant’s PCES experience and
assignment in Olympic Marketing automatically made him more qualified
than the selectees, many of whom also had PCES experience.
Complainant also contends that the Agency was motivated by unlawful
discrimination because it failed to produce vacancy announcements for
some PCES positions and specify the selection process. However, Agency
guidelines reveal that displaced PCES employees generally submitted
resumes to the General Manager of the PCES Division so they could be
considered for available PCES positions in the new organizational
structure, instead of applying pursuant to vacancy announcements
for individual positions. Further, with respect to two PCES special
assignments (claims 9 and 18), the record reveals that these positions
were specifically created for the selectees because of the restructuring;
therefore, there was no vacancy announcement for these non-competitive
assignments. Moreover, the Agency met its burden of production for
each non-selection at issue by providing an individualized legitimate,
non-discriminatory explanation for its actions. Further, we note that
Complainant had not reached 40 years of age when 18 of the 27 matters
contained in his complaint occurred. Thus, Complainant only has standing
to assert age discrimination with respect to claims 8, 20, 21, 22, 23,
24, 25, 26, and 27.
Finally, we note that Complainant contends that the Agency’s final
decision impermissibly disclosed his medical information when it noted
Complainant’s clinical psychologist’s report of Complainant’s
reaction to his job circumstances. The Rehabilitation Act provides that,
with limited exceptions, information obtained regarding the medical
condition or history of any employee shall be treated as a confidential
medical record. 29 C.F.R. § 1630.14. By its terms, this requirement
applies to confidential medical information obtained from “any
employee,” and is not limited to individuals with disabilities. See
Hampton v. U.S. Postal Serv., EEOC Appeal no. 01A00132 (Apr. 13, 2000).
A review of the decision reveals that the Agency noted the
psychologist’s observations in the narrow context of determining
whether Complainant initiated timely EEO counselor contact. For example,
the Agency concluded that, based on the psychologist’s observations,
“one might expect an individual who professed to be dismayed by his
treatment to be more curious about his circumstances than to do nothing
for over a year after his placement in Sandy, Utah and finally get around
to making a Freedom of Information Act request in March of 1994 concerning
year-old placements.” Moreover, there is no mention of Complainant’s
medical history or medical condition in the decision. Therefore, we find
that the psychologist’s observations about Complainant’s reaction
to his work situation were relevant to the Agency’s legal analysis,
and the Agency’s use of those observations did not improperly disclose
Complainant’s medical information.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 27, 2012
Date
1 EEO MD-110, at Chap. 8, § III.C, provides that if class certification
is dismissed, the individual complaint may still proceed, unless the
same or another basis for dismissal applies.
2 Because we address the merits of Complainant’s claims, we decline
to review the Agency’s procedural dismissals.
3 Although the Agency characterized this matter as an independent
claim, it is more appropriately viewed as an allegation that supports
Complainant’s non-selection claims.
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0120093180
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013