Richard Waring, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 25, 1998
01981855 (E.E.O.C. Nov. 25, 1998)

01981855

11-25-1998

Richard Waring, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Richard Waring v. United States Postal Service

01981855

November 25, 1998

Richard Waring, ) Appeal No. 01981855

Appellant, ) Agency No. 4F-920-1231-95

v. ) Hearing No. 340-96-3630X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

DECISION

Appellant timely initiated an appeal from a final agency decision

("FAD") concerning his 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 AGE. The appeal is accepted pursuant to

the provisions of EEOC Order No. 960.001.

The issue presented is whether appellant was discriminated against based

his sex, race (Caucasian), color (white) and age (41) when he was not

selected for the position as General Clerk, PS-5.

At the time in question, appellant was a Letter Carrier at the applicable

facility. A position as General Clerk became vacant and, after two

Regular Clerks failed to pass the prerequisite typing examination,

the position was opened for bids pursuant to applicable procedures.

Appellant and one other employee submitted bids. As the more senior of

the two applicants, appellant would be entitled to be awarded the position

if he passed the typing examination. Appellant and the other applicant

were notified that their examinations were scheduled for June 27, 1995,

and instructed that: "if you fail to show, you will be given no further

consideration for this position." After appellant failed to appear for

the examination, his supervisors contacted him. Appellant informed them

that he had not appeared for personal reasons and stated that: "If you

can possibly reschedule, please let me know, if not I'll have to decline."

The other applicant had appeared for and passed the examination.

After the agency declined to reschedule an examination for appellant

and awarded the position to the other applicant, appellant timely

sought EEO counseling and filed his instant EEO complaint, which the

agency accepted and investigated. Thereafter, appellant requested a

hearing before an EEOC Administrative Judge ("AJ"). The AJ issued a

recommended decision ("RD") without a hearing pursuant to the provisions

of 29 C.F.R. �1614.109(e).

The AJ noted that appellant could establish a prima facie case of

discrimination by showing that: (1) he was a member of a protected

group; (2) he was qualified for and applied for a position for which

the employer was seeking applicants; (3) despite his qualifications,

he was not selected; and (4) the employer continued to seek or actually

selected a similarly qualified person outside of his protected group(s).

See Cuddy v. Carmen, 762 F.2d 119, 122 (D.C.Cir.), cert. denied,474

U.S. 1034 (1985). The AJ found that by failing to appear for and pass

the requisite typing examination, appellant failed to establish that

he was qualified for the position or that a similarly situated person

(i.e. who failed to appear for or pass the examination) outside his

protected groups was selected. While appellant argued that the other

applicant had been preselected for the position, the AJ noted that the

applicable negotiated agreement would have required that the position be

awarded to either of the General Clerks or to appellant had any of them

passed the typing examination.

In its FAD, the agency adopted the RD. On appeal, appellant makes a

number of arguments including that: the AJ was biased in favor of the

agency, the selectee was preselected, the applicable negotiated agreement

does not prohibit rescheduling of the examination and that the Postmaster

favors female employees.

However, after a careful review of the record on appeal, the Commission

finds that the RD adequately set forth the relevant facts and analyzed

the appropriate regulations, policies and laws. The Commission is not

persuaded by appellant's assertion that the AJ's meeting with agency

representatives reflects bias against him and discerns no basis to disturb

the AJ's finding that appellant failed to establish a prima facie case

of discrimination. Therefore, it is the decision of the Commission to

AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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

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 this

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 this 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 this 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 this 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:

Nov 25, 1998

________________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations