Edward Gaffney, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (P/W Region), Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01972084 (E.E.O.C. Jan. 29, 1999)

01972084

01-29-1999

Edward Gaffney, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (P/W Region), Agency.


Edward Gaffney v. United States Postal Service

01972084

January 29, 1999

Edward Gaffney, ) Appeal No. 01972084

Appellant, ) Agency No. 4E-852-1079-95

v. ) Hearing No. 350-95-8291X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(P/W Region), )

Agency. )

DECISION

The Commission accepts appellant's timely 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.; and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Section 621 et seq.

See EEOC Order No. 960.001. In his complaint, appellant alleged that

he was discriminated against based on his sex and age (date of birth:

April 23, 1949) when he was not selected for either of two positions of

Mailpiece Design Analyst, EAS-15.

In the selections at issue, no personal interviews were conducted

and no review panel was utilized. The selecting official (female,

date of birth April 27, 1949) relied on a Postal Service application

form referred to as a '991' which was submitted by each candidate and

addressed the knowledge, skills and abilities required for the position.

The selecting official's first choice for one of the positions was a

male (date of birth: April 17, 1945) but he declined it. The agency

ultimately filled the position by the noncompetitive transfer of a female

(date of birth: September 25, 1959). The selecting official selected a

female (date of birth: May 11, 1958) for the other position. However,

before this candidate was placed, a hold was put on the position in order

to enable it to be filled pursuant to the Reduction in Force ("RIF")

procedures. Ultimately, a female (date of birth: September 23, 1949)

who had been displaced by a RIF action was placed into the position.

Appellant, an Electronic Technician, had applied for the positions.

After receiving notification of his nonselection, appellant timely

sought EEO counseling and filed his instant EEO complaint, which was

accepted and investigated by the agency. Appellant timely requested a

hearing before an EEOC Administrative Judge ("AJ"). After a hearing,

the AJ issued a recommended decision ("RD") finding no discrimination.

The AJ did not directly address the question of whether appellant

established a prima facie case of sex or age discrimination, but

proceeded to address the issue of whether he met his ultimate burden to

establish discrimination. Appellant contended that the agency should

have utilized a review panel and conducted interviews, and that the

selecting official unfairly considered verbal recommendations of other

candidates' supervisors and unfairly considered prior detail experience

which he did not have. However, the AJ noted that when filling management

level EAS positions, agency regulations allow selecting officials the

choice of whether or not to utilize review panels. The AJ also was not

persuaded that the selecting official's use of verbal recommendations

from those supervisors who chose to make them indicated discrimination.

While appellant pointed to his superior technical skills, the AJ

noted that the principal emphasis of the Mailpiece Design Analyst

positions was customer service and that the technical functions were

the responsibility of Electronic Technicians. After a review of the

testimony and the evidence, including appellant's 991 form (which

the selecting official testified was inadequate in several respects),

the AJ found that appellant failed to establish that the legitimate,

nondiscriminatory reasons articulated by the agency for its actions were

a pretext for discrimination or reprisal.

The agency adopted the RD in its FAD. Appellant timely appeals,

and argues that the AJ erred in disallowing certain of his requested

witnesses and in not compelling the agency to answer certain of his

disclosure questions. Appellant also complains about the AJ's rulings

regarding the order of the presentation of witnesses.

However, after a thorough review of the record, the Commission finds

that the RD adequately set forth the relevant facts and analyzed the

appropriate regulations, policies and laws. The Commission is not

persuaded that the AJ committed harmful error or otherwise abused her

discretion with respect to her rulings regarding discovery and witnesses.

Accordingly, the Commission discerns no basis to disturb the AJ's

finding that appellant failed to establish discrimination. 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 29, 1999

________________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations