Dale Mackelprang, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01982356 (E.E.O.C. Jan. 15, 1999)

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