David A. Elias, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 16, 2009
0120081660 (E.E.O.C. Sep. 16, 2009)

0120081660

09-16-2009

David A. Elias, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


David A. Elias,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120081660

Agency No. 4J-493-0056-07

DECISION

On February 20, 2008, complainant filed an appeal from the agency's final

decision concerning his equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission affirms the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant was

not working for the agency. In late 2005 or early 2006, complainant

took the Rural Carrier Exam and received a passing score. On April 9,

2007, the agency sent complainant a Call-in Notice, informing him that

the agency would like to interview him for the position of Rural Carrier

Associate at the agency's facility in Ada, Michigan. The Call-in Notice

instructed complainant to "[c]omplete all of the enclosed paperwork

and return to Postmaster by 4/17/07. You will be contacted for an

interview. . . . Failure to respond will remove your name from the

register." However, in the next paragraph, the Call-in Notice stated:

Contact Postmaster On [telephone number] by 04-17-07

for an appointment for an interview.

Report to: US Postal Service

7125 Headley St. SE Ada, MI 49301-9998

Complainant timely submitted the paperwork but did not telephone the

postmaster to arrange an interview appointment. Complainant waited

to be contacted for an interview; however, this never occurred.

Complainant ultimately was not interviewed for the position, and the

postmaster interviewed and selected other candidates.

Complainant filed an EEO complaint alleging that he was discriminated

against on the bases of national origin (Lebanon) and age (forty-four

years old) when, on or about May 20, 2007, the agency failed to call

complainant for an interview.

At the conclusion of the investigation, the agency provided complainant

with a copy of the report of investigation and notice of his right

to request a hearing before an EEOC Administrative Judge (AJ). When

complainant did not request a hearing within the time frame provided in

29 C.F.R. � 1614.108(f), the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b). The decision concluded that complainant failed

to prove that he was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant contends that he succeeded in establishing

discrimination on the basis of his national origin because the agency's

articulated reason for its actions was pretext.

ANALYSIS AND FINDINGS

Because this is an appeal from a decision issued without a hearing,

pursuant to 29 C.F.R. � 1614.110(b), the Commission reviews de novo

the agency's decision. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

To prevail in a disparate treatment claim, complainant must satisfy

the three-part evidentiary scheme fashioned by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally

establish a prima facie case by demonstrating that he was subjected to

an adverse employment action under circumstances that would support an

inference of discrimination. Furnco Construction Co. v. Waters, 438

U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with

in this case, however, since the agency has articulated legitimate and

nondiscriminatory reasons for its conduct. See United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997). To ultimately prevail, complainant must prove,

by a preponderance of the evidence, that the agency's explanation is

a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

In her affidavit, the selecting official averred that the reason

complainant was not interviewed for the position in question was because

he failed to contact the postmaster for an appointment for an interview,

as directed in the Call-in Notice. The Call-in Notice specified that

failure to respond would result in the removal of complainant's name

from the register for employment consideration.

Complainant argues that the agency's articulated reason was not legitimate

because the Call-in Notice only required complainant to complete and

return the enclosed paperwork by a certain date. The Call-in Notice

stated that complainant "will be contacted for an interview," which

indicated that complainant was not required to contact the postmaster

for an interview.

Although the Call-in Notice was not a model of clarity in that it

contained ambiguous instructions for arranging an appointment for an

interview, the Commission finds that this was not sufficient to show,

by a preponderance of the evidence, that the agency's articulated reason

for not interviewing complainant was a pretext for discrimination on

the bases alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission affirms

the agency's final decision, finding that complainant failed to show

that he was discriminated against on the bases alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

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. 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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 16, 2009

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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