Robert G. Sutkoff, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionOct 29, 1999
01976178 (E.E.O.C. Oct. 29, 1999)

01976178

10-29-1999

Robert G. Sutkoff, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.


Robert G. Sutkoff, )

Appellant, )

) Appeal No. 01976178

v. ) Agency Nos. 1-G-772-1531-95;

) 1-G-772-1272-96

) Hearing Nos. 330-96-8215X;

) 330-96-8217X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. 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 discriminated against on the bases of race

(White), national origin (Anglo), color (white) and sex (male) when

his Training Technician bid was rescinded in January 1995 and when,

in June 1995, he was not permitted to perform the duties of a bid he

no longer held.<1> 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 appellant, a MPFSM Clerk at the agency's North

Houston Processing and Distribution facility in Houston, Texas, filed

two formal EEO complaints with the agency. At the conclusion of the

investigation, appellant requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing on the consolidated complaints, the AJ

issued a Recommended Decision (RD) finding no discrimination. The FAD

adopted the RD.

The AJ concluded that appellant established a prima facie case of

discrimination on each of his alleged bases because a similarly situated

employee, outside of his protected classes, was treated more favorably

in so far as she was awarded the Training Technician bid and was also

permitted to perform duties on a bid she no longer held. The AJ then

concluded that the agency articulated a legitimate, nondiscriminatory

reason for its actions, namely, that the employee, who was treated more

favorably, had more seniority than appellant.

The AJ found that appellant did not establish that more likely than

not, the agency's articulated reason was a pretext to mask unlawful

discrimination. In reaching this conclusion, the AJ found that while

the awarding of the Training Technician bid was seriously flawed and

while permitting an employee to perform duties on a job for which she

no longer held a bid may have been an administrative error, both actions

were motivated by seniority and not by factors prohibited under Title VII.

On appeal, appellant contends that the AJ mishandled his hearing

and did not act on his request to draw an adverse inference based on

the agency's processing of his complaint. Appellant also introduces

additional evidence to support his argument that his qualifications for

the Training Technician bid were superior to those of the employee to

whom it was awarded.

Upon review, the Commission finds that the RD summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We remind appellant that an AJ has broad discretion in the conduct of

a hearing. See 29 C.F.R. �1614.109(c); Malley v. Department of the Navy,

EEOC Appeal No. 01951503 (May 22, 1997). We find, as did the AJ, that

while appellant was well qualified for the Training Technician bid,

the evidence does not prove his qualifications were plainly superior

to those of the employee to whom the bid was awarded. We agree with

the AJ that appellant did not establish, by a preponderance of the

evidence, that discriminatory animus motivated the agency's action.

The AJ based her decision on a detailed assessment of the record and

the credibility of the witnesses. In general, the Commission accepts an

AJ's credibility determination. Esquer v. United States Postal Service,

EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of

the Treasury, EEOC Request No. 05900589 (July 26, 1990). We discern no

reason to disturb the AJ's finding of no discrimination. Accordingly,

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 29, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 The Commission notes that both of

the bids referred to are classified as �best qualified� bids which

means that they are not awarded solely on seniority. However, when

the applicants for a �best qualified� bid are equally qualified,

seniority can be a factor in the award.