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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