Steven B. Platt, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Area) Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01970872 (E.E.O.C. Sep. 9, 1999)

01970872

09-09-1999

Steven B. Platt, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Area) Agency.


Steven B. Platt, )

Appellant, )

) Appeal No. 01970872

v. ) Agency No. 1-D-281-1072-95

) Hearing No. 140-96-8118X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid-Atlantic Area) )

Agency. )

)

DECISION

Appellant 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), sex

(male), and reprisal (prior EEO activity), in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

Appellant alleged he was discriminated against when

he received an ineligible rating on the Motor Vehicle Operator (MVO)

test. 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

by the agency as a Casual, EAS-7, at the Processing and Distribution

Center in Charlotte, North Carolina. Following an investigation,

appellant requested a hearing before an Equal Employment Opportunity

Commission (EEOC) Administrative Judge (AJ). Pursuant to 29 C.F.R. �

1614.109(e), the AJ issued a Recommended Decision (RD) without a hearing,

finding no discrimination. The agency's FAD adopted the AJ's findings of

no discrimination. It is from this decision that appellant now appeals.

The AJ concluded that appellant failed to establish a prima facie case

of race and sex discrimination because he failed to demonstrate that

similarly situated employees, not in his protected classes, were treated

differently under similar circumstances when he received an ineligible

rating on the MVO test, and was denied a career appointment. We note

that appellant failed to assert and prove any set of facts sufficient to

raise an inference of discrimination. Specifically, as the AJ noted,

appellant failed to show that a non-Black, female employee, who also

received an ineligible rating on the test, was given a career appointment.

With respect to reprisal, the AJ determined that appellant failed to

establish a prima facie case of discrimination. Appellant did not show

that the alleged responsible management official was aware of his 1993

prior EEO activity. Furthermore, the AJ found that appellant failed

to show a nexus between another 1993 prior EEO complaint of his and the

instant complaint.

The AJ then concluded that assuming appellant had established a

prima facie case of discrimination based on race, sex, and reprisal,

appellant failed to establish that the agency's articulated legitimate,

nondiscriminatory reasons for its actions were pretextual. The AJ found

that appellant received an ineligible rating on the MVO test because

he failed the test. Therefore, he was not offered a career position

because of the ineligible rating. Furthermore, the AJ concluded that

appellant did not provide, and the record did not reveal, any evidence

to support a finding that the agency's reasons were a pretext to mask

unlawful discrimination.

After a careful review of the entire record, including the agency's

response, and arguments and evidence not specifically addressed in

this decision, the Commission finds that the AJ's RD summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. We note that appellant failed to present evidence that any

of the agency's actions were in retaliation for appellant's prior EEO

activity or were motivated by discriminatory animus towards appellant's

race and sex. Therefore, the Commission discerns no basis to disturb the

AJ's findings of no discrimination. Accordingly, it is the decision of

the Equal Employment Opportunity Commission to 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:

9/09/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations