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.