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.