James E. Dixson, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionOct 1, 1999
01982764 (E.E.O.C. Oct. 1, 1999)

01982764

10-01-1999

James E. Dixson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.


James E. Dixson, )

Appellant, )

) Appeal No. 01982764

v. ) Agency No. 1A-101-1053-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(N.E./N.Y. Metro Region), )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his 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.

Appellant alleges that he was retaliated against for prior EEO activity

when in November 1995, he was not selected for the position of Manager,

Field Maintenance Operations, EAS-17. The appeal is accepted in

accordance with EEOC Order No. 960.001. For the following reasons,

the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was

employed as a Supervisor, Maintenance Operations, EAS-16 at the agency's

J.A.F. Building in New York, New York. Believing he was discriminated

against as referenced above, appellant sought EEO counseling and

subsequently filed a complaint on August 19, 1996. At the conclusion of

the investigation, appellant requested that the agency issue a final

agency decision. It is from this decision appellant now appeals.

On appeal, appellant submits evidence in support of his qualifications

for the EAS-17 position. The agency requests that we affirm its FAD.

Based on the standards set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the

Commission agrees with the agency that appellant failed to establish

a prima facie case of retaliation. In reaching this conclusion, we

note that appellant's most recent prior EEO activity was resolved by a

settlement agreement dated January 1990. The Selecting Official (SO)

testified that he did not know appellant and had no knowledge of his

prior EEO activity. Appellant alleges that the SO did know about his prior

EEO activity because he consulted with the Manager, Maintenance Support

(MMS) who was the responsible management official named in appellant's

prior complaint. However, the MMS testified that he did not recall

appellant's prior EEO activity, and there is no evidence to support a

finding that the MMS discussed appellant's prior EEO activity with the SO.

The Commission also notes that appellant presents no evidence in support

of a causal nexus between his prior EEO activity and his non-selection.

Moreover, the SO rejected all three of the recommended applicants for the

EAS-17 position, two of whom had no prior EEO activity, and re-posted

the vacancy. Accordingly, we are unable to infer that appellant's

non-selection was motivated by retaliatory animus.

Therefore, after a careful review of the record, including appellant'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 (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

October 1, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations