01971862
01-15-1999
______________________________ William L. Evans, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.
William L. Evans v. United States Postal Service
01971862
January 15, 1999
______________________________
William L. Evans, )
Appellant, )
)
v. )
) Appeal No. 01971862
William J. Henderson, ) Agency No. 1F901106094
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region) )
Agency. )
______________________________)
DECISION
On December 17, 1996, William L. Evans ("appellant") timely appealed a
final agency decision ("FAD"), dated November 29, 1996, concluding he had
not been discriminated against in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �621
et seq. Appellant had alleged that, on December 1, 1993, agency
officials discriminated against him on the bases of his race (Black)
and age (DOB 11/25/46) when he was informed that he was not recommended
for the position of Training Technician, PS-06. This appeal is accepted
in accordance with the provisions of EEOC Order No. 960.001.
At the time this matter arose, appellant was employed by the agency as a
Custodian in its Los Angeles District Office. The agency issued a vacancy
announcement for three Training Technician positions on July 14, 1993.
Appellant applied and interviewed for one of the positions. On December
1, 1993, appellant received a letter from the agency's personnel office
informing him that the Review Committee had not recommended him for any
of the positions.
Believing that he was the victim of discrimination, appellant sought EEO
counseling and, thereafter, filed a formal EEO complaint on March 26,
1994. By notice dated April 25, 1994, the agency informed appellant that
his complaint had been accepted for investigation. While appellant's
formal complaint listed race, age and sex as his bases, the agency
only listed the race and sex bases for investigation. The agency
provided appellant with the opportunity to dispute the defined issues,
but the record does not show any response.<1> At the conclusion of the
investigation, the agency forward a copy of the investigative report
to appellant explaining that he could request a hearing before an EEOC
Administrative Judge ("AJ") within 30 days or receive a FAD without a
hearing. The appellant timely requested a hearing. After receiving the
agency's Motion for Decision Without a Hearing and hearing no objection
from the appellant, the AJ issued her recommended decision ("RD") without
a hearing, on September 25, 1996, finding no discrimination. In reaching
her conclusion, the AJ found that appellant failed to establish a prima
facie case of race or age discrimination in that the selectees were
members of both of appellant's protected groups. On March 4, 1997, the
agency issued its FAD adopting the AJ's finding of no discrimination.
It is from this decision that appellant now appeals.
After a careful review of the record in its entirety the Commission finds
that the AJ's RD sets forth the relevant facts and properly analyzes the
appropriate regulations, policies and laws. The Commission finds that
appellant failed to present evidence demonstrating that the circumstances
surrounding his nonselection give rise to an inference of race or age
discrimination. Therefore, after a thorough review of the evidence of
record, including arguments and evidence not specifically addressed in
this decision, the Commission discerns no basis to disturb the AJ's
finding of no discrimination. Nothing proffered by the appellant on
appeal differs significantly from the arguments raised before, and
given full consideration by the AJ. Accordingly, it is the decision of
the Commission to AFFIRM the agency's final decision adopting the AJ's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Jan 15, 1999
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 It is noted that appellant apparently did not dispute the agency's
failure to accept his sex discrimination claim before the Administrative
Judge and does not dispute it in this appeal.