Charlene Wiggins, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 13, 1999
01973912 (E.E.O.C. Oct. 13, 1999)

01973912

10-13-1999

Charlene Wiggins, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Charlene Wiggins v. United States Postal Service

01973912

October 13, 1999

Charlene Wiggins, )

Appellant, )

)

v. )

) Appeal No. 01973912

William J. Henderson, ) Agency No. 1B-141-1002-96

Postmaster General, )

United States Postal Service, )

Agency. )

_________________________________)

DECISION

INTRODUCTION

Appellant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning her allegation that the agency discriminated against her on

the basis of her race (Black) in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is

accepted by the Commission in accordance with the provisions of EEOC

Order No. 960.001. For the reasons set forth below, we AFFIRM the FAD.

ISSUE PRESENTED

The issue presented is whether appellant proved that she was discriminated

against, as referenced above, when in 1991, she was not selected for a

career position as a Distribution Clerk Machine Operator (DCM Operator).

BACKGROUND

Appellant filed her formal complaint on November 20, 1995. Following an

investigation, she was provided with a copy of the investigative file and

notified of her right to request a hearing before an EEOC Administrative

Judge (AJ). By letter dated March 9, 1997, the appellant requested a

final agency decision. The agency issued a FAD dated March 12, 1997,

that found appellant had not been discriminated against. It is from this

decision that appellant now appeals.

C-1, the Human Resources Specialist for the agency's Buffalo District,

testified, in pertinent part, that an individual who wanted to be

considered for a DCM Operator position had to first take a written

examination and receive a numerical score. Thereafter, the individual

is invited to attend a group orientation in which the second part of the

process, i.e., 18 hours of dexterity training, is explained. According

to C-1, only after an employee passes the dexterity training are they

considered qualified for the position, and eligible to be hired. If the

dexterity portion of the examination is not successfully completed, C-1

stated that the employee's name is removed from further consideration

and will never appear on any hiring worksheet.

C-1 testified that, after taking the written examination, appellant

received a score of 85.6 points. As a result, on June 22, 1990,

her name appeared on the DCM Operator Pre-Hire List No. 90-70000 at

#227. Appellant, however, did not respond to the invitation to attend

the orientation program, and did not take, at that time, the 18-hour

dexterity training. Consequently, she was deemed ineligible to appear

on any hiring worksheets.

Hiring Worksheet No. 90-00008 (Worksheet-1) was issued on December 17,

1990. As previously indicated, only those candidates who qualified on the

18-hour dexterity training were listed. On February 6, 1991, Worksheet-1

closed with 25 individuals being hired. On March 23, 1991, Worksheet-2

was issued, but was subsequently canceled with no one being hired. In

August 1991, appellant attended the orientation program and successfully

completed the dexterity training, on September 22, 1991. Worksheet-3 was

issued on December 10, 1991; however, the agency maintained that no one

was hired from that list because it was issued only for the purpose of

updating its administrative records.<1>

ANALYSIS AND FINDINGS

The Commission has reviewed the record and finds that the FAD

addressed the facts and correctly applied the appropriate regulations,

policies and laws. See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Employers generally have broad discretion to set policies and

carry out personnel decisions, and should not be second-guessed by

reviewing authorities absent evidence of unlawful motivation. Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). To

that end, we find the agency offered legitimate, nondiscriminatory reasons

to explain why appellant was not selected for a DCM Operator position

in 1991. She was not eligible to be hired in February 1991, because, at

that time, she had not completed the orientation program or the 18-hour

dexterity training. In December 1991, she was eligible, but no one was

hired from the December 1991 hiring worksheet. According to appellant,

she established herself as an eligible candidate by taking the exam,

receiving a passing score, completing the dexterity training, and working

as both a Casual and Transitional employee. We find that appellant failed

to establish pretext. She has not presented any persuasive evidence which

contradicts the testimony of C-1. Other than her bare assertion that she

was not selected because of her race, appellant offered no persuasive

evidence that this factor played any role in this matter.<2>

CONCLUSION

Accordingly, we AFFIRM the agency'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. �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 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. 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:

Oct. 13, 1999

DATE Carlton Hadden, Acting Director

Office of Federal Operations

1C-1 also indicated that, even if appellant had attended the June 1990

orientation program and had successfully completed the 18-hour dexterity

training, she would not have been hired. According to C-1, the lowest

qualifying score on the February and December 1991 worksheets was 85.9.

Therefore, appellant's score of 85.6 would never have been reached.

2Although all of the issues raised by appellant on appeal were not

specifically addressed in this decision, we assure appellant that

her arguments were reviewed and considered, but were found not to be

persuasive.