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Talinao v. Potter

September 9, 2005

NESTOR R. TALINAO, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM

Nestor R. Talinao sues the United States Postal Service (USPS) for discrimination on the bases of race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 20003 et seq. USPS moves for summary judgment. Because Mr. Talinao has not made out a prima facie case of the race and national origin discrimination he alleges, the government's motion must be granted.

The Maintenance Selection System

The system USPS uses to promote maintenance employees is unbelievably complex. It first classifies applicants for maintenance positions as "entrance applicants," who do not work for USPS, "inservice applicants," who are career USPS employees, and "incraft applicants," who are maintenance craft career employees like Mr. Talinao, and who are given priority for maintenance craft positions, Def. Ex. 4 at 2. An incraft applicant does not apply for a specific position but for placement on one or more promotion eligibility registers (PER) (e.g., for building equipment mechanic, electronic technician). His first step is to complete a maintenance employee application. The application is sent to the National Testing Administration Center (NTAC) which keeps track of "application components." Id. at 11. Those components include a knowledge, skills, abilities (KSAs) booklet, also known as candidate supplemental application (CSA) booklet, for each type of position applied for, id. at 10; a written examination; and evaluations by a supervisor and a review panel. Id. at 14-18. The application components are scored by NTAC, and the applicant is rated either eligible or noneligible for placement on the PER or PERs for which he has applied. Def. Ex. 3 ¶ 5.

If an incraft applicant has been rated noneligible for a PER, he may not reapply for that PER except through an "updating process." He may request an "updated" rating when he has obtained further education or training relevant to the KSAs required for a certain position. Def. Ex. 4 at 9. Update requests are reviewed by the maintenance selection system coordinator and either approved or disapproved. Id. at 22. If a request is approved, the coordinator completes an update form that identifies the KSAs approved for update and gives the applicant a KSA booklet. The applicant provides information as to the KSAs that have been approved for update and has five working days to return the KSA booklet to the coordinator (ten working days if he has more than five KSAs to address). Id. at 23. Once the KSA booklet is returned to the coordinator, it is sent to NTAC. The applicant may then be scheduled, if necessary, for update examinations, review panels, and supervisor evaluations. Id. at 23-4.

Plaintiff's Attempts to "Update"

Nestor Talinao is of Filipino descent and national origin. He was hired by USPS in 1993 as a maintenance mechanic. His claim in this case is that he was unfairly denied the opportunity to "update" for three promotion positions.

In March 1997, Mr. Talinao took the examination for building equipment mechanic (BEM-07) and was scored "ineligible." In July 1997, he took the examinations for maintenance mechanic (MPE-07) and electronic technician (ET-09), and he re-took the examination for BEM-07. On October 31, 1997, Mr. Talinao was advised by his supervisor Ralph Howard that his score from the July 1997 examination for BEM-07 would be disregarded because he had previously applied for BEM-07 and had not "updated." Mr. Taliano scored ineligible on the exams for MPE-07 and ET-09 as well, so he would be required to "update" to re-apply for any of the three positions.

Mr. Taliano began the updating process in March 1998 by receiving additional training and education. He submitted partial updates for the MPE-07 and ET-09 positions to his MSS coordinator, Steven Mummendey, who determined that he had obtained relevant training for the MPE-07 position (but not the ET-09 position),*fn1 and he forwarded "update setup" forms for the MPE-07 and BEM-07 positions to the Postal Service Hiring and Testing Office, so that that office could set up a panel interview and an examination date. Mummendey Decl. ¶ 13. In October 1998, Mr. Talinao asked Mr. Mummendey about the status of his MPE-07 update. Mr. Mummmendey checked its status and learned that the Hiring and Testing Office had not processed Mr. Talinao's update form or sent him a KSA booklet, so he helped him to fill out an update form for the MPE-07 position and provided him with a KSA booklet. Id. at ¶¶ 15-16. During the October 1998 meeting, according to Mr. Talinao, Mr. Mummendey questioned him about his immigration status and asked to see his green card. On October 6, 1998, Mr. Talinao contacted an EEO counselor and complained that Mr. Mummendey had questioned him about his citizenship and immigration status and had not allowed him to test for the three positions. Def. Ex. J. Redress mediation on Mr. Talinao's discrimination claim was unsuccessful, Def. Ex. K, but USPS agreed to use Mr. Talinao's July 1997 examination --- the score that had previously been disregarded --- for his BEM-07 update. Unfortunately for Mr. Talinao, the NTAC report showed that he had scored ineligible on that examination. Def. Statement of Material Facts ¶ 15.

For the ET-09 and MPE-07 positions, Mr. Mummendey sent the plaintiff a KSA booklet on November 1, 1999, and scheduled him to go before the review board on November 16, 1999. Def. Ex. 10. There is a dispute in the record as to whether Mr. Talinao turned in the KSA booklet or showed up for his appointment before the review board, but it is not a material dispute, because Mr. Talinao never took the required examination. Two letters were mailed to Mr. Talinao on December 8, 1999, scheduling him for two examinations on January 4, 2000. Def. Ex. 11. Mr. Mummendey asserts that he sent Mr. Talinao a memorandum on December 30, 1999, explaining the steps he had to take in order to update and informing him that he had been scheduled to take an exam on January 4, 2000. Def. Ex. 13. When Mr. Talinao did not appear for the examinations he was deemed to have abandoned the update process.*fn2

Rule 56(f) Motion

Mr. Talinao first resists summary judgment by asserting that he "cannot for reasons stated present by affidavit facts essential to justify the party's opposition," Fed. R. Civ. P. 56(f), but his motion does not contain the requisite specific reasons that "adequately explain[]" why he cannot oppose summary judgment. Strang v. U.S. Arms Control and Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); see Byrd v. EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999).

Mr. Talinao states only that he needs more time to find a witness with "personal knowledge regarding the circumstances surrounding plaintiff's claim," Pl. Opp'n at 2, to replace his former supervisor Ralph Howard, who is now deceased; that co-workers are "hesitant to openly corroborate my claim, though they privately do," Talinao Decl. ΒΆ 34; and that USPS refused to respond to certain discovery requests that he had propounded. He has not indicated what facts he hopes to elicit in further discovery, nor has he explained how those facts would create a genuine issue of material fact. He had ample time to find other witnesses when he learned that Mr. Howard was unavailable, he chose not to take the depositions of any of his co-co-workers, and he did not bring ...


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