01976935
02-28-2000
Irving Salter, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Area), Agency.
Irving Salter v. United States Postal Service
01976935
February 28, 2000
Irving Salter, )
Complainant, )
) Appeal No. 01976935
v. ) Agency No. 4B-140-1059-95
) Hearing No. 160-96-8696X
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Area), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint
of unlawful employment discrimination on the bases of race (Black)
reprisal (prior EEO activity), and physical disabilities (varicosle
testicle & needle in 3rd finger left hand), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq.<1> Complainant claims he was discriminated against when: (1)
he was not selected for the position of Part-Time Flexible (PTF) City
Letter Carrier, and (2) his name was removed from the entire employment
register. The appeal is accepted in accordance with 64 Fed. Reg. 37,
644, 37, 659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the
following reasons, the agency's decision is AFFIRMED.
At the conclusion of the investigation, complainant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ). Following the hearing, the AJ issued a Recommended Decision
(RD), finding no discrimination. The agency's FAD adopted the AJ's
finding of no discrimination. It is from this decision that complainant
now appeals.
The record reveals that during the relevant time, complainant was not
employed with the agency. However, he applied for the position of
Part-Time Flexible (PTF) City Letter Carrier (position) at the agency's
Buffalo, New York Post Office.
Nonselection
The AJ concluded that complainant established a prima facie case of
race discrimination. In February 1995, on two separate occasions,
complainant qualified for the position for which he was not selected,
while two White candidates were selected. Also, the AJ determined that
complainant established a prima facie case of reprisal. However, the
AJ concluded that complainant failed to establish a prima facie case of
disability discrimination because he did not make his disabilities known
to the selecting official (SO). The AJ did find that complainant is a
qualified individual with a disability under � 501 of the Rehabilitation
Act since he has a varicosle testicle and a needle in the third finger
of his left hand which substantially limited a number of major life
activities, and he qualified for the position.<2>
Considering that complainant established a prima facie case of race
discrimination and reprisal, and assuming, arguendo, that complainant
established a prima facie case of disability discrimination, the AJ
concluded that the agency articulated legitimate nondiscriminatory reasons
for its actions. Pursuant to agency policy, complainant was not selected
because he had an unstable and less consistent work history than the two
selectees. Furthermore, the selectees did not provide false or misleading
information on their applications, as did complainant. Specifically,
complainant indicated in his 1995 application, that he had worked with one
employer since 1988. However, he did not provide this information in his
1994 application. In both his 1994 and 1995 applications, complainant
stated that he was employed with another employer for approximately
one year. However, an agency inquiry revealed that he had been employed
with this employer for less than six months. Additionally, complainant
only provided six years of past employment information, instead of the
requested ten years. Furthermore, complainant informed the selecting
official (SO) that he had previously worked for the agency for 18 months,
instead of twelve months. Also the SO was required to obtain supplemental
employment information from complainant for 1989 through 1991.
The AJ concluded that complainant failed to establish that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The AJ found that complainant's rating as the highest individual on
the PTF carrier employment register, was but one factor of several in
the selection process, and did not entitle him to the position. Also,
complainant's past employment with the agency was not given great weight
due to his sporadic employment history. Furthermore, the AJ found that
complainant failed to provide sufficient evidence that based on his
race, reprisal, and disabilities he was discriminated against when he
was not selected.
Removal From List of Eligibles
The AJ concluded that complainant established a prima facie case of
reprisal because he demonstrated that a similarly situated, non-Black
applicant, did not receive a letter similar to the one he received,
and was not selected. The AJ determined that complainant failed to
establish a prima facie case of race and disability discrimination.
Considering that complainant established a prima facie case of reprisal,
and assuming, arguendo, that complainant established a prima facie
case of race and disability discrimination, the AJ determined that the
agency articulated a legitimate nondiscriminatory reason for its action.
The AJ found that the letter removing complainant from the agency's
employment registers, other than the employment register for the position
from which he was appropriately excluded due to the agency's "Rule of 3"
hiring procedures, was issued by mistake. Furthermore, after receipt of
the letter, complainant was interviewed for several subsequent vacancies.
Moreover, the AJ found that the same letter mistakenly sent to complainant
was also mistakenly sent to other nonselected candidates, including a
White applicant, who was placed on the same PTF carrier hiring register
as was complainant.
The AJ determined that complainant failed to establish that the
agency's articulated reason was a pretext for unlawful discrimination.
Complainant did not provide any evidence that he was discriminated
against based on his race, reprisal and alleged disabilities when he
was removed from the employment registers.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's race and alleged disabilities. We discern
no basis to disturb the AJ's findings of no discrimination which were
based on a detailed assessment of the record and the credibility of the
witnesses. Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). Therefore, after a careful review
of the record, complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.