01974174
01-27-2000
John M. Scorcia, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (NE/NY Region), Agency.
John M. Scorcia v. United States Postal Service
01974174
January 27, 2000
John M. Scorcia, )
Complainant, )
) Appeal No. 01974174
v. ) Agency No. 4A-117-1712-93
) Hearing Nos. 160-95-8063X
William J. Henderson, ) 160-96-8148X
Postmaster General, )
United States Postal Service, )
(NE/NY Region), )
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 national origin (Italian),
reprisal (prior EEO activity), age (DOB: 4/19/39), and mental disability
(job stress), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 he was not selected
for a Postmaster position (EAS-20 or above) in the Long Island District,
including Huntington Station, Valley Stream, Westbury, Lynbrook, Roslyn
and Rockville Centre.<2> 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 complainant, formerly an EAS-22 Senior Procurement
Specialist and at the relevant time a saved grade EAS-22 employee, filed
formal EEO complaints with the agency on October 25 and 28, 1993, alleging
that the agency had discriminated against him as referenced above. At the
conclusion of the investigation, complainant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
After the AJ ordered supplemental discovery, and following a hearing,
the AJ issued a Recommended Decision (RD) finding no discrimination.
The AJ applied the standards set forth in United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711 (1983), and concluded that
the agency articulated legitimate, nondiscriminatory reasons for each
selection of a candidate other than complainant for the Postmaster
positions at issue. The AJ found that the officials responsible
for interviewing and recommending Postmaster candidates (Officials)
credibly testified that they had no knowledge of complainant's
prior EEO activity or his status as an individual with an alleged
disability.<3> The Officials indicated that complainant had sparse
experience in postal operations as compared to each of the selectees.
Notwithstanding complainant's lack of experience in postal operations,
he was interviewed for a Postmaster position in a smaller facility in
South Beach, but performed poorly in the interview because he could
not answer basic questions about postal operations. The AJ noted that
complainant admitted he had limited experience, whereas the selectees
had more substantial and more recent experience in postal operations.
The AJ concluded that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ found
that complainant presented no evidence, other than his testimony, that
the agency Human Resources Director (Director) negatively influenced
the selection process for discriminatory and retaliatory reasons.
The agency's FAD adopted the AJ's RD. On appeal, complainant provides
documents in an effort to demonstrate how the Director so infused himself
into the selection process as to infer discriminatory and retaliatory
animus. The agency requests that we affirm its FAD.
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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
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 any of his alleged bases. In reaching this conclusion,
we note that although the Director was to some extent involved in the
processing and filling of vacancies in the New York metropolitan area,
as evidenced by memorandums in complainant's appeal at exhibits A-3
through A-7, complainant presented only conjecture, and not evidence,
that the Director used his position to manipulate the selection process or
otherwise influence the selecting officials against selecting complainant.
To the contrary, these officials indicated that at no time did the
Director contact them concerning the selection of complainant to any
position. See Investigative File, Affidavit B, page 1, and Hearing
Transcript at page 267.
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. Therefore, after a careful review of the
record, including complainant's contentions on appeal, 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:
January 27, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1On 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.
2The Commission notes that complainant's non-selection at the Rockville
Centre facility was addressed in a separate complaint.
3The 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.