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