Evelyn Cyr, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (New York Metro Area), Agency.

Equal Employment Opportunity CommissionOct 3, 2000
01992913 (E.E.O.C. Oct. 3, 2000)

01992913

10-03-2000

Evelyn Cyr, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Metro Area), Agency.


Evelyn Cyr v. United States Postal Service

01992913

October 3, 2000

.

Evelyn Cyr,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(New York Metro Area),

Agency.

Appeal No. 01992913

Agency No. 1A-111-0094-96

Hearing No. 160-99-8123X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) 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. �

621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant claims she was discriminated against on the bases of race

(Caucasian) and age (Born July 19, 1939) when on June 19, 1996 she was

not selected for a 90-day best qualified detail position as a Complaints

and Inquiry Clerk, PS-06.

At the time of the alleged discriminatory event, complainant was

employed as a Mark Up Clerk, at the agency's Queens Processing and

Distribution Center in Flushing, New York. Believing that she was

the victim of discrimination, complainant sought EEO counseling and,

thereafter, filed a formal EEO complaint. The agency accepted the

complaint for investigation and complied with all of our procedural

and regulatory prerequisites. Subsequently, complainant requested a

hearing before an EEOC Administrative Judge (AJ). Upon informing the

parties of her intention to issue findings and conclusions without

a hearing and permitting an appropriate opportunity for response,

the AJ issued a Recommended Decision (RD) finding no discrimination.

See 29 C.F.R. � 1614.109(e). Thereafter, the agency adopted the RD and

issued a FAD, dated March 14, 1997, finding no discrimination. It is

from this agency decision that complainant now appeals. On appeal,

complainant contests the AJ's determination to issue a decision without

a hearing and generally reiterates previously submitted contentions.

The investigative record reveals that the complainant applied for and

was not selected for the detail position in question. A younger,

African-American female was selected for the detail. The selectee

previously had served a detail in the same position and received

high praise from her superiors for her performance. The selecting

officials presented unrebutted testimony that one of several reasons

why the selectee was awarded the position was because she �demonstrated

exceptional ability to deal with irate customers.� The complainant had no

experience in the office of the position in question. In his recommended

decision, the AJ concluded that, while the complainant established a

prima facie case of race and age discrimination, she failed to show

that the agency's reason for not selecting complainant was pretextual.

In this regard, the AJ reasoned that the complainant failed to show that

her qualifications were plainly superior to those of the selectee and

that the complainant failed to present any material facts to rebut the

agency's legitimate, nondiscriminatory reason for not selecting her.

After careful review of the entire record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, the Commission finds that the AJ's RD

presented the relevant facts, and properly analyzed the appropriate

regulations, policies and laws. The Commission discerns no basis to

disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 3, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.