Charles A. Liverpool, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01982894 (E.E.O.C. Oct. 5, 1999)

01982894

10-05-1999

Charles A. Liverpool, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.


Charles A. Liverpool, )

Appellant, )

) Appeal No. 01982894

v. ) Agency No. 1K-204-0011-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid-Atl. Region), )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his Equal Employment Opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

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

Appellant alleges that he was discriminated against on the basis of sex

(Male) when he was not selected for the Dock Clerk position on Tour 2.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED as CLARIFIED.

The record reveals that during the relevant time, appellant was

employed as a Parcel Post Keyer at the agency's Bulk Mail Center in

Capital Heights, Maryland. Believing he was discriminated against as

referenced above, appellant sought EEO counseling and subsequently filed

a complaint on April 4, 1997. At the conclusion of the investigation,

appellant did not request a hearing before an EEOC Administrative Judge.

Accordingly, the agency issued a FAD finding no discrimination, from

which appellant now appeals. Appellant did not submit a statement in

support of his appeal. The agency requests that we affirm its FAD.

Based on the standards set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253-256 (1981), the Commission disagrees with the FAD and

finds that appellant established a prima facie case of sex discrimination.

In reaching this conclusion, we note that two similarly situated females

were selected as Dock Clerks on Tour 2. We further find that the agency

articulated a legitimate, nondiscriminatory reason for its selections,

namely that appellant and the two females were rated equally but that the

females had more working experience as dock clerks.<1> The Commission

concludes that appellant failed to present evidence that more likely

than not, the agency's explanation for its selections was a pretext for

sex discrimination. In reaching this conclusion, we note that appellant

has presented no evidence that he had more experience working as a

Dock Clerk than the two females selected for the vacancies on Tour 2.

Moreover, in total, there were six vacancies for the Dock Clerk position:

two on Tour 1; two on Tour 2; and two on Tour 3. Of the six selectees,

three were male and three were female.<2> Accordingly, we are unable

to infer that the selections were motivated by discriminatory animus

towards appellant's sex. Therefore, after a careful review of the record,

we AFFIRM the FAD as CLARIFIED.

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:

October 5, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 Appellant alleges that his score on

the written test was higher than the score of one of the female

selectees. However, personnel only used the written test scores to

determine who was eligible to be included on the applicant list.

Once an applicant made the list, the applicant was rated by

the Selecting Official based on PS Form 2591 (Application for

Employment) and PS Form 1796-B (Qualifications Rating Sheet for

Best Qualified Positions). The Selecting Official had no knowledge

of the numerical scores achieved on the written tests.

2 Appellant only bid for the two vacancies on Tour 2. One of the male

selectees, who bid for the four of the vacancies on Tours 1 and 2,

received the same rating as appellant. Although this male selectee did

not get his first choice of a Tour 2 position, he was selected for one of

the vacancies on Tour 1. Accordingly, we credit the Selecting Official's

representation that appellant would probably have been selected had he

enlarged his bid.