Timothy Fitzgerald, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.

Equal Employment Opportunity CommissionJan 14, 2000
01985218 (E.E.O.C. Jan. 14, 2000)

01985218

01-14-2000

Timothy Fitzgerald, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.


Timothy Fitzgerald v. United States Postal Service

01985218

January 14, 2000

Timothy Fitzgerald, )

Complainant, )

) Appeal No. 01985218

v. ) Agency No. 4-J-604-0022-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Mid West Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of race (White), sex (male) and in reprisal for prior EEO activity

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> Complainant alleges he was discriminated

against when, in October 1996, he was not recommended for promotion to

the position of Postmaster at the Flossmoor, Illinois agency facility

where he worked as a Part-Time Flexible Letter Carrier. The appeal is

accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the Commission affirms the FAD as clarified herein.

Complainant sought EEO counseling and when counseling efforts failed,

he filed a formal EEO complaint on March 21, 1997. The agency accepted

the complaint for processing, and at the conclusion of the investigation,

complainant requested a hearing before an EEOC Administrative Judge.

However, he subsequently withdrew his request, and the agency issued

a final decision finding no discrimination from which complainant now

appeals. Complainant did not submit a statement in support of his appeal.

The agency requests that we affirm its final decision.

Based on the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253-256 (1981); and Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,

545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation

cases), the Commission agrees with the agency that complainant failed

to establish a prima facie case of race discrimination because not one

of the five recommended applicants was not White. We also agree with

the agency that complainant failed to establish a prima facie case of

retaliation since, in spite of complainant's unsupported protestations

to the contrary, the three recommending officials denied knowledge of

complainant's prior EEO activity. However, we disagree with the agency's

conclusion that complainant failed to establish a prima facie case of

sex discrimination since the recommended candidates were female.

The agency met its burden to articulate a legitimate, nondiscriminatory

reason for not recommending complainant for promotion, namely that he

was not as qualified as the recommended applicants. The Commission

finds that complainant failed to present evidence that the agency's

articulated reason for its action was a pretext for sex discrimination.

In reaching this conclusion, we note that the Reviewing Committee,

comprised of two women and one man, did not interview any of the

applicants but based their recommendations on the information contained

in each applicant's written application (Form 991). Applicants were

instructed to use the STAR (situation/task, action, result) method to

describe their knowledge, skills and abilities (KSAs). The Reviewing

Committee agreed that complainant was qualified for the position,

but they were unanimous in their decision not to recommend complainant

because he was not among the best qualified. The Committee members stated

that he lacked experience in finance and that his familiarity with the

Flossmoor facility, a "finance station," was limited. Complainant has

presented no evidence that his qualifications were so plainly superior

to those of the recommended applicants to warrant his recommendation.

See Shapiro v. Social Security Administration, EEOC Request No. 05960403

(December 6, 1993).

In conclusion, there is no evidence in the record to support a finding

that the Reviewing Committee was motivated by either discriminatory

or retaliatory animus towards complainant. Therefore, after a careful

review of the record, including evidence not specifically addressed in

this decision, we affirm the FAD as clarified.

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 14, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

1 On 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.