Irving Salter, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Area), Agency.

Equal Employment Opportunity CommissionFeb 28, 2000
01976935 (E.E.O.C. Feb. 28, 2000)

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.