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.