01975385
09-09-1999
Appellants, )
Noe Rodriguez and )
Ernesto Martinez )
Appellants, )
) Appeal Nos. 01975385
) 01975700
v. ) Agency Nos. 1G-784-1038-95
) 1G-784-1039-95
William J. Henderson, ) Hearing Nos.360-96-8733X
Postmaster General, ) 360-96-8732X
United States Postal Service )
(S.E./S.W. Areas), )
Agency. )
)
DECISION
Appellants timely initiated appeals from two final agency decisions (FADs)
concerning their equal employment opportunity (EEO) complaints of unlawful
employment discrimination on the bases of sex (male) and age (4/26/47)<1>
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 (ADEA), as amended, 29 U.S.C. � 621 et seq. Appellants allege
they were discriminated against when they were not selected for the
position of Supervisor of the Remote Encoding Center. As the appeals
involve substantially similar allegations of discrimination, they are
consolidated pursuant to 29 C.F.R. �1614.606. The appeals are accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decisions are AFFIRMED.
The record reveals that appellants, Flat Sorter Machine Operators at
the agency's McAllen, Texas facility, filed formal EEO complaints with
the agency on October 4, 1995, alleging that the agency had discriminated
against them as referenced above. At the conclusion of the investigation,
appellants requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). The AJ consolidated the
complaints, and pursuant to 29 C.F.R. � 1614.109(e), issued a Recommended
Decision (RD) without a hearing, finding no discrimination.
In her decision, the AJ found that seven positions as Supervisor of the
Remote Coding Center were filled pursuant to the vacancy announcement
in question. Of those selected for the positions, four were males
(ages 40, 44, 45 and 53) and three were females (ages 24, 31 and 37).
As such, the AJ concluded that appellants each established a prima facie
case of discrimination because some of the selectees were outside of
their protected classes.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the Selecting
Official (SO)(male, DOB unknown), chose those who were best qualified for
the positions. Furthermore, the SO testified that appellant Rodriguez
was not selected for the position because of statements he made during
his interview. Specifically, the SO testified that appellant Rodriguez
indicated he did not like to strictly follow rules, that the Remote
Encoding Center had a high percentage of women in its workforce, and
that he was weak on union matters. With respect to appellant Martinez,
the SO testified that he was not selected because of his qualifications,
and because he was not a self starter or motivator, and because he would
not complement the team atmosphere at the Remote Encoding Center.
The AJ found that appellants did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that the
majority of those selected for the positions were within appellants'
protected classes, thus negating the inference that discrimination was
a contributing factor in the selection.
On June 11, 1997, the agency issued each appellant a final decision,
which adopted the AJ's RD. On appeal, appellant Rodriguez argues that
he is more qualified than one of the selectees (female). He further
contends that this selectee lied on her application and is not qualified
to be a supervisor.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Although appellant contends that the
named selectee lied on her application, he has failed to present evidence
which proves she was chosen because she is female. Appellants have failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward their sex or age. Furthermore, appellants
have not refuted the SO's contention that they did not perform well
during their interviews, and did not present themselves as team-players.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
9/09/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Only appellant
Martinez alleged discrimination on the basis
of age.