01990699
07-17-2000
Timothy Fitzgerald, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Timothy Fitzgerald v. United States Postal Service
01990699
July 17, 2000
.
Timothy Fitzgerald,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Region),
Agency.
Appeal No. 01990699
Agency No. 4E-800-028-297
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of race (unspecified), 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.<1> Complainant alleges
he was discriminated against when on April 15, 1997, he was denied an
interview for the position of Supervisor, Customer Services (SCS), at the
agency's Aspen, Colorado Post Office. The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405). For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a PS-05 City Letter Carrier at the agency's Berwyn, Illinois Post
Office. He alleged that he had been detailed to the Aspen Post Office
between October of 1993 and April of 1994 as a SCS, and was later given
a detail as Officer in Charge at the agency's Carbondale, Colorado
Post Office. Complainant then applied for the SCS position at issue in
September of 1996 but the job was reposted. Complainant next reapplied for
the position at issue in October of 1996 but was subsequently informed
that he would not be given an interview. Believing he was a victim of
discrimination, complainant sought EEO counseling and later filed a
complaint on January 5, 1998. At the conclusion of the investigation,
complainant was issued a copy of the investigative report, and, as
complainant did not request a hearing, the agency issued a FAD finding
no discrimination.
The FAD initially found that complainant failed to establish a prima facie
case of discrimination or retaliation because although he is a member
of a protected group, he presented no evidence that similarly situated
individuals not in his protected classes were treated differently under
similar circumstances. The FAD further found that assuming, arguendo,
that complainant established a prima facie case of discrimination or
retaliation, the agency articulated legitimate, nondiscriminatory reasons
for its actions, namely, the Chairman of the Review Committee (Chairman)
stated that of the 105 employees who applied for two (2) positions of
SCS, the Review Committee reviewed all the applications and supervisory
evaluations before recommending fifteen applicants to the Selecting
Official. The applicants were initially classified according to experience
with customer service and then assigned an Ability Statement Final Rating
(ASFR) by a consensus of the Review Committee based on supervisory
ratings. The Chairman stated that although complainant was placed in
a category of applicants with "lots of customer service experience"
and given further consideration, the Review Committee gave him a "B"
ASFR due to his supervisory ratings,<2> and thus he was not placed on
the recommended list. The FAD noted that the record established that
eleven male and four female applicants (13 race unspecified; 2 White; no
prior EEO activity) were rated "A", and all of the applicants had higher
overall supervisory ratings than did complainant and thus were selected
for interviews. The FAD further found that complainant failed to establish
that the agency's articulated reasons were a pretext for discrimination.
After a careful review of the record, based on McDonnell Douglas
Cop. v. Green, 411 U.S. 792 (1973) 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 initially finds that complainant
established a prima facie case of sex discrimination. Here, the record
reflects that the fifteen applicants for the SCS position who were
placed on the recommended list and were ultimately interviewed for the
position included four females. However, the Commission agrees with the
FAD's finding that the agency articulated legitimate, nondiscriminatory
reasons for its actions. In so finding, we note the Chairman's credible
testimony that complainant was not selected for the recommended list as
the applicants for the CSC position who possessed substantial customer
service experience were then rated by the Review Committee based on
their supervisory ratings, and on this basis complainant was given a
"B" ASFR, while the fifteen applicants placed on the recommended list
and selected for interviews were given "A" ratings. We further note
that the applicants who received "A" ratings had more Above Average
and Superior supervisory ratings than did complainant. In addition,
the Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. Therefore, after a careful review of
the record, including arguments and evidence not specifically addressed
in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9 -18 (November 9,
1999). 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 17, 2000
__________________
Date
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
______________________________
1On 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.
2The record reflects that complainant's supervisor rating included 3
"Above Average" ratings and 6 "Basic" ratings.