01981855
11-25-1998
Richard Waring, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard Waring v. United States Postal Service
01981855
November 25, 1998
Richard Waring, ) Appeal No. 01981855
Appellant, ) Agency No. 4F-920-1231-95
v. ) Hearing No. 340-96-3630X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
DECISION
Appellant timely initiated an appeal 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 AGE. The appeal is accepted pursuant to
the provisions of EEOC Order No. 960.001.
The issue presented is whether appellant was discriminated against based
his sex, race (Caucasian), color (white) and age (41) when he was not
selected for the position as General Clerk, PS-5.
At the time in question, appellant was a Letter Carrier at the applicable
facility. A position as General Clerk became vacant and, after two
Regular Clerks failed to pass the prerequisite typing examination,
the position was opened for bids pursuant to applicable procedures.
Appellant and one other employee submitted bids. As the more senior of
the two applicants, appellant would be entitled to be awarded the position
if he passed the typing examination. Appellant and the other applicant
were notified that their examinations were scheduled for June 27, 1995,
and instructed that: "if you fail to show, you will be given no further
consideration for this position." After appellant failed to appear for
the examination, his supervisors contacted him. Appellant informed them
that he had not appeared for personal reasons and stated that: "If you
can possibly reschedule, please let me know, if not I'll have to decline."
The other applicant had appeared for and passed the examination.
After the agency declined to reschedule an examination for appellant
and awarded the position to the other applicant, appellant timely
sought EEO counseling and filed his instant EEO complaint, which the
agency accepted and investigated. Thereafter, appellant requested a
hearing before an EEOC Administrative Judge ("AJ"). The AJ issued a
recommended decision ("RD") without a hearing pursuant to the provisions
of 29 C.F.R. �1614.109(e).
The AJ noted that appellant could establish a prima facie case of
discrimination by showing that: (1) he was a member of a protected
group; (2) he was qualified for and applied for a position for which
the employer was seeking applicants; (3) despite his qualifications,
he was not selected; and (4) the employer continued to seek or actually
selected a similarly qualified person outside of his protected group(s).
See Cuddy v. Carmen, 762 F.2d 119, 122 (D.C.Cir.), cert. denied,474
U.S. 1034 (1985). The AJ found that by failing to appear for and pass
the requisite typing examination, appellant failed to establish that
he was qualified for the position or that a similarly situated person
(i.e. who failed to appear for or pass the examination) outside his
protected groups was selected. While appellant argued that the other
applicant had been preselected for the position, the AJ noted that the
applicable negotiated agreement would have required that the position be
awarded to either of the General Clerks or to appellant had any of them
passed the typing examination.
In its FAD, the agency adopted the RD. On appeal, appellant makes a
number of arguments including that: the AJ was biased in favor of the
agency, the selectee was preselected, the applicable negotiated agreement
does not prohibit rescheduling of the examination and that the Postmaster
favors female employees.
However, after a careful review of the record on appeal, the Commission
finds that the RD adequately set forth the relevant facts and analyzed
the appropriate regulations, policies and laws. The Commission is not
persuaded by appellant's assertion that the AJ's meeting with agency
representatives reflects bias against him and discerns no basis to disturb
the AJ's finding that appellant failed to establish a prima facie case
of discrimination. Therefore, it is the decision of the Commission to
AFFIRM the FAD.
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. �1614.604(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 25, 1998
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations