01A46143_r
12-17-2004
Larry Cross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry Cross v. United States Postal Service
01A46143
December 17, 2004
.
Larry Cross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A46143
Agency No. 4B-120-0104-03
DECISION
Complainant appeals to the Commission from the agency's August 16, 2004
decision finding no discrimination. According to the agency's decision,
complainant alleged that he was discriminated against on the basis of
age (date of birth: March 20, 1948) when in July 2003, he was subjected
to harassment during the pre-employment process, and denied employment
opportunities at the Albany, New York District. Complainant also alleged
that he was discriminated against on the bases of age (date of birth:
March 20, 1948) and in reprisal for prior EEO activity when during a
Pre-Hire Orientation interview conducted on October 23, 2003, for the
vacant position of City Carrier, Bainbridge, New York, discriminatory
statements and allegations were made, and he was asked inappropriate
questions. The agency, in its decision, concluded that it asserted a
legitimate, nondiscriminatory reason for its actions, which complainant
failed to rebut. With regard to complainant's harassment claim, the
agency found that the incidents complained of by complainant did not
rise to the level of severity or pervasiveness so as to establish a
hostile working environment.
We find that the agency articulated a legitimate, nondiscriminatory
reason for the nonselection. The Human Resources Specialist stated that
it was his responsibility to determine complainant's pre-hire suitability
through the pre-screen process. The Human Resources Specialist reported
that complainant was not interviewed for any of the positions he applied
for during the period July 2003 through October 2003, due to complainant's
examination scores. Specifically, complainant's examination scores were
not high enough to place complainant within the area of consideration.
The Human Resources Specialist commented that the agency considers
applicants in examination score order from the highest score down
following the Rule of Three. Complainant was not interviewed because
his examination scores were not reached during the Rule of Three process.
The Human Resources Specialist reported that complainant was not selected
for consideration due to his examination scores. Each of the individuals
selected had higher examination scores than complainant's examination
scores.
Complainant failed to show that the agency's reasons are pretext for
discrimination. Moreover, we find that complainant's harassment claim is
not sufficiently severe or pervasive to rise to the level of harassment.
Furthermore, complainant has failed to show by a preponderance of
the evidence, that he was discriminated against on the bases of age
or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
December 17, 2004
__________________
Date