01970506
11-19-1998
Louis J. Fazekas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro), Agency.
Louis J. Fazekas, )
Appellant, )
)
v. ) Appeal No. #01970506
) Agency No. #1A-111-1013-94
William J. Henderson, ) Hearing No. #160-96-8134X
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro), )
Agency. )
______________________________)
DECISION
INTRODUCTION
On October 22, 1996, appellant timely initiated an appeal to the
Equal Employment Opportunity Commission (Commission) from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination
in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. ��621 et seq.
The appeal is accepted by the Commission in accordance with EEOC Order
No. 960.001.
ISSUE
The issue on appeal is whether appellant has established by a
preponderance of the evidence that the agency discriminated against him on
the bases of race/color (White), sex (male), national origin (Hungarian),
and age (D.O.B. 7/28/39) on November 1, 1993, when he was made aware
that he was not selected for the position of Manager, Transportation
Network, (EAS-23)<1>, Queens General Mail Facility (G.M. Facility),
Processing and Distribution (P&D), Flushing, New York (the position),
upon receipt of a prior EEO investigative file<2>.
CONTENTIONS ON APPEAL
On appeal, appellant has essentially reiterated the contentions he raised
below during the investigation of this complaint. The agency has raised
no new arguments on appeal.
BACKGROUND
The record reveals that appellant filed a formal EEO complaint with
the agency on February 4, 1994, alleging that the agency discriminated
against him as referenced above. The agency accepted appellant's
complaint, conducted an investigation, provided appellant with a copy of
the investigative report, and advised appellant of his right to request
either a hearing before an EEOC administrative judge (AJ) or a final
agency decision (FAD). Appellant requested a hearing. A hearing was held
on September 17, 1996. In a recommended decision (RD) dated September
19, 1996, the AJ found that the agency did not discriminate against
appellant on any of the bases listed above. The agency subsequently
adopted the AJ's recommended decision in a final agency decision dated
October 15, 1996. It is from this decision that appellant now appeals.
At the time this complaint arose, appellant was employed by the agency in
the position of Supervisor, Transportation Operations, (GS-16), Queens
G.M. Facility, P&D, (Tour III), Flushing, New York. Appellant alleged
that the agency discriminated against him, when on November 1, 1993,
he received, from the agency, a letter and file, dated October 29,
1993, in which he discovered that the (initial) applicant list for the
position contained twenty-three (23) names, including his own, but did not
contain the name of the selectee appointed by the agency to the position.
Furthermore, appellant alleged that he never saw, nor did the agency
advise him orally, or otherwise, of the "Reposting" of the position.
Appellant contends that the agency intentionally failed to apprise him,
(and other individuals from the mail processing unit who previously
had applied), of the Reposting, if in fact there was a Reposting.
In addition, appellant alleged that the agency violated all of its
principles, printed regulations and policies on promotional procedures;
and, that the agency pre-selected the final selectee for the position.
First and foremost, in his recommended decision the AJ concluded that it
was the "Second Posting" that was the subject of the instant complaint.
Next, with respect to any of the cited bases, (race/color, sex, national
origin, and age), the AJ determined that appellant failed to establish
a prima facie case of discrimination, because he failed to apply for
the position under the Second Posting. Moreover, the AJ concluded
that appellant failed to show by preponderant evidence that he was
prevented from applying for the position on account of "some prohibited
discriminatory factor". Specifically, the AJ found that the agency
made an initial posting for the position. However, appellant was not
screened through to the "best qualified" list; therefore, he was not
considered as a finalist for selection. The agency selected a White
male for the position. However, after the selection, the agency canceled
its initial posting, and selection<3>, and issued a "Second Posting"<4>
for the position. The AJ determined that appellant did not apply under
the Second Posting; hence, he was not selected for the position.
The agency's selecting official (SO) testified that with respect to the
final selection, appellant was not on the agency's list of applicants to
be considered for the position<5>. The final selectee, who is a Black
male over 40 years of age, testified that he saw the Second Posting on
the bulletin board where he worked, at the agency's Manhattan facility.
He stated that the agency did not inform him of the posting, nor suggested
that he apply. The AJ concluded that the final selectee completed his
application solely on the basis of the Second Posting which he saw
on the bulletin board. The agency's Tour three (III) Manager (Tour
III Manager) at the Flushing, New York facility, testified that due to
agency "restructuring", at the time of the selection to the position,
he received approximately two or three new vacancy announcements per
week. He posted these vacancies on a "bulletin board clipboard" located
near employee mail boxes; and, appellant's mailbox was "in that area".
He further testified that when a vacancy announcement was only a single
page, he placed the announcement in the individual mail boxes; however,
when the announcement was bulky, he placed it on the bulletin board<6>.
In addition, the agency's Tour III Manager testified that he did not
receive any instructions to withhold the posting of any announcement;
and, that the announcement for the position would have been placed on the
above-referenced clipboard. He also stated that he received no complaints
from others who claimed to not have seen any vacancy announcements.
The Manager of Human Resources (the HRM) testified and confirmed that
in 1992 the agency underwent a major "restructuring"; and, that all EAS
officials designated as "affected" (such as appellant) were required to
apply for new positions. As a result of the "restructuring" the agency
distributed vacancy announcements at a rapid pace. However, the HRM
was never instructed to withhold and not disseminate any particular
announcement, especially with respect to the instant position under
consideration". In addition, the HRM's assistant telephoned the various
managers to ensure that certain announcements, including the one for the
position, had been received<7>. Furthermore the HRM had "never received
complaints that announcements were not received nor posted". Therefore,
the AJ concluded that the agency did not discriminate against appellant
when he was not selected for the position.
After a careful review of the entire record, including appellant's
and the agency's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, the Commission finds that the
AJ's recommended decision properly analyzed appellant's complaint as
a disparate treatment claim. See McDonnell Douglas Corp. v Green,
411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253-56 (1981); Furnco Construction Company v. Waters,
438 U.S. 567 (1978); O'Connor v. Consolidated Coin Caterers Group,
116.Ct. 1307 (1996) (applying the McDonnell Douglas standard to ADEA
cases); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). See also
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), and U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Additionally, the AJ set forth the relevant facts and properly analyzed
the appropriate regulations, policies, and laws applicable to this case.
Based upon our review of the record, We agree with the AJ's determination
that appellant failed to establish a prima facie case of discrimination
with respect to the bases of race/color, sex, national origin, and age.
Assuming, arguendo, that appellant had established a prima facie case
of discrimination on these bases, appellant failed to establish that the
agency's articulate legitimate, nondiscriminatory reason for not selecting
appellant for the position was pretext designed to mask discrimination.
Therefore, We find that appellant failed to prove, by a preponderance
of the evidence, that the agency discriminated against him on the above
cited bases of discrimination.
CONCLUSION
The Commission discerns no basis to disturb the AJ's finding of no
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(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 this 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 this 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 this 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:
Nov. 19, 1998
_______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency's initial announcement for the position contained the
typographical error that the position was posted as an EAS-21 position;
however, it should have been posted as an EAS-23 position. The Second
Posting of the position contained the correct EAS designation, EAS-23.
2 In Fazekas v. USPS, EEOC 01942758 (May 3, 1995), the Commission
dismissed appellant's complaint (same appellant) on the grounds that he
failed to seek EEO counseling in a timely manner. The issue dismissed
was whether on May 1, 1993, the agency discriminated against appellant
on the same bases alleged above, when he was not selected to the same
position as stated above.
3 The initial selectee was not approved by the agency. The agency
determined that there were individuals better qualified than the initial
selectee, who it could select for the position.
4 Appellant testified that he did not apply for the position under the
Second Posting because he was unaware of the Second Posting. He averred
that the Second Posting was kept from him with discriminatory animus
by the agency; that this Second Posting was deliberately placed in
"selected areas only", or that "someone removed it from view".
5 The record confirms that approximately fifteen (15) applicants applied
for the position. Seven of these, not including appellant, had reapplied
from the original posting.
6 As new announcements arrived, "older past-day announcements" were
removed.
7 This was so especially in light of the short time frame that applicants
had to apply for the position. Applicants had approximately four (4)
days to apply, from March 29 to April 2, 1993.