01982356
01-15-1999
Dale Mackelprang, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Dale Mackelprang v. United States Postal Service
01982356
January 15, 1999
Dale Mackelprang, ) Appeal No. 01982356
Appellant, ) Agency No. 4E-852-1137-96
v. )
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
DECISION
Appellant timely initiated an appeal from a final agency decision
("FAD") concerning his 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.; Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq.; and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. Section 621 et seq. The appeal
is accepted pursuant to the provisions of EEOC Order No. 960.001.
The issue presented is whether appellant was discriminated against
based his sex, race (White), religion (LDS-Mormon), physical disability
(left shoulder), mental disability (work-related anxiety and stress),
age (date of birth: 6/4/48) and retaliation for prior EEO activity when
he was neither interviewed nor selected for the position of Statistical
Program Coordinator, EAS-18.
Appellant was employed as a Relief Expediter, PS-5, when he applied for,
but was neither referred nor selected for, the position. The record
reflects that 10 persons, including appellant, originally submitted
applications for the position. A Promotion Review Committee ("PRC")
screened these candidates and recommended four candidates for further
consideration. Appellant received two ratings of "minimum" and six
ratings of "satisfactory" in the eight elements considered by the PRC
and was not among the recommended candidates. Thereafter, the Finance
Manager, who was to be the selecting official, decided not to fill
the position. In her affidavit, the Finance Manager states only that
she did not fill the position at that time "due to reservations [she]
had with a situation that arose with the finalists in this package" and
that, since appellant was not among the finalists, "these reservations
and this situation did not involve [him]." Report of Investigation
("ROI") Affidavit F3.
The position was reposted and six additional candidates applied, bringing
the total number of candidates to 16. Appellant received seven ratings
of "minimum" and one rating of "satisfactory" by the second PRC, which
had a new member. He was not one of the two candidates recommended by
this PRC for further consideration. The ultimate selectee (female,
Hispanic, date of birth: 7/25/61; no information on religion, disability
or EEO history) also had been included among the candidates referred
for further consideration in the prior selection process.
Appellant's complaint was accepted by the agency, which complied with all
procedural prerequisites. After appellant failed to request a hearing,
the agency issued its FAD. In the FAD, the agency noted that appellant
could establish a prima facie case of discrimination by showing that: (1)
he was a member of a protected group; (2) he was qualified for and applied
for a position for which the employer was seeking applicants; (3) despite
his qualifications, he was not selected; and (4) the employer continued
to seek or actually selected a similarly qualified person outside of his
protected group(s). See Cuddy v. Carmen, 762 F.2d 119, 122 (D.C.Cir.),
cert. denied, 474 U.S. 1034 (1985). While the agency questioned whether
appellant could establish a prima facie case of discrimination, the agency
addressed the issue of whether he demonstrated by a preponderance of
the evidence that the agency's reasons for its actions were merely a
pretext for discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 714-17 (1983); Dixon-Smith v. United
States Postal Service, EEOC Petition No. 03970007 (May 14, 1997).
The agency found that appellant failed to establish that his nonreferral
and nonselection were due to discrimination, stating that he "did
not demonstrate current familiarity with the department's dynamics or
successful leadership ability through his 991 responses." Accordingly,
the agency found that appellant failed to demonstrate pretext.
On appeal, appellant argues that: the candidate rating system is
discriminatory; the agency's failure to fully explain the "situation"
which arose under the initial selection process deprived him the
opportunity to demonstrate the discriminatory impact of the decision
to repost the vacancy; the difference in his ratings by the two PRC's
constitutes direct evidence of discrimination; and the agency's finding
that he lacked current familiarity with the department's dynamics
demonstrates that he was discriminated against because of perceived
physical and mental disabilities due to of his absence on workers'
compensation prior to the selection.
However, after a careful review of the record on appeal, the Commission
finds that the FAD adequately set forth the relevant facts and analyzed
the appropriate regulations, policies and laws. Therefore, it is the
decision of the Commission to AFFIRM the FAD.
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:
Jan 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations