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.