01974331
04-02-1999
Frankie J. Dean, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
Frankie J. Dean v. United States Postal Service
01974331
April 2, 1999
Frankie J. Dean, )
Appellant, )
)
v. ) Appeal No. 01974331
) Agency No. 4-D-250-1107-94
William J. Henderson, ) Hearing No. 120-95-6149X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
______________________________)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against him in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 C.F.R. � 621 et seq.
In his complaint, appellant alleged that the agency discriminated against
him on the basis of age (D.O.B. 2/12/44), when on April 8, 1994, the
agency informed him that he was not selected for a career position as a
Part-Time Flexible (PTF) Clerk. The Commission accepts this appeal in
accordance with EEOC Order No. 960.001.
Following an investigation of this complaint, appellant requested
a hearing before an Equal Employment Opportunity Commission (EEOC)
administrative judge (AJ). A hearing was conducted on April 25, 1995.
On January 30, 1996, the AJ issued a Recommended Decision (RD) finding no
discrimination. Thereafter, on March 14, 1996, the agency issued a final
decision, adopting the AJ's recommended finding of no discrimination.
It is from this decision that appellant now appeals.
The AJ found that appellant failed to establish a prima facie case
of discrimination based on age because the non-selection of appellant
occurred under circumstances that did not give rise to an inference of
discrimination, since the selectee was objectively better qualified
than appellant. Assuming that appellant had established a prima
facie case of age discrimination, the AJ found that appellant failed
to establish that the agency's legitimate, non-discriminatory reasons
for not selecting him were pretextual. Although appellant argued that
his work experience was superior to the selectee's, the AJ found that
appellant failed to show that his qualifications overall were clearly
superior to the selectee's.
Appellant argued that the selecting official (SO) revised and
misinterpreted the recommendation given appellant by one of his former
employers. However, the AJ found that the SO's interpretation of the
recommendation that appellant was "slow and methodical" was not negative.
However, the SO needed a selectee who could work "fast" due to limited
clerk hours.
With respect to appellant's arguments regarding his interview, the AJ
determined that appellant did not interview well. Therefore, his chance
of being selected was not good, especially considering the low score
he received on a previously administered test. Additionally, appellant
argued that the SO only contacted one of appellant's former supervisor's
(S1), for a recommendation, and failed to contact a particular former
supervisor (S2), and other former supervisors. The AJ found that
appellant failed to show that S2 would have given appellant a more
favorable recommendation than S1, or that S2's recommendation would
have been sufficient to surmount appellant's low test score, or poor
interview. The AJ found that the SO did, however, unsuccessfully, attempt
to contact another prior employer of appellant's for a recommendation.
Also, the SO only contacted S1 for a recommendation because: (1) he was
one of three persons appellant listed on his application; (2) the place
of employment where S1 supervised was similar to the SO's with respect
to the type and volume of work, office size and responsibilities; and
(3) initially, the SO was unaware that appellant had worked for S1.
Furthermore, the AJ did not find appellant's allegation regarding the
alleged inconsistency in the SO's testimony probative of the issue
of discrimination. The AJ found the SO's testimony that age was
not considered in her selection decisions, credible and appellant's
arguments "specious and unpersuasive". Furthermore, the AJ found
nothing significantly inconsistent among the SO's affidavit, the EEO
Counselor's Report, and the SO's hearing testimony. Moreover, the AJ
determined that none of the alleged inconsistent statements were material
to appellant: (1) establishing a prima facie case; (2) rebutting the
agency's legitimate nondiscriminatory reasons for not selecting appellant,
or (3) demonstrating pretext. In summary, the AJ found that appellant
failed to refute any of the material facts of this case.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision sets forth the relevant facts,
and properly analyzes the appropriate regulations, policies, and laws
applicable to appellant's complaint as a disparate treatment claim. It is
the Commission's policy to defer to its AJ's findings on questions of
credibility. This is particularly true where the credibility determination
is critical, and based on witness demeanor or conduct, as was the case
in the instant matter. See Gathers v. United States Postal Service,
EEOC Request No. 05890894 (November 9, 1989); Juarez v. Department of
Justice, EEOC Appeal No. 01872114 citing Wrenn v. Gould, 808 F.2d 493,
499 (6th Cir. 1987); see also Anderson v. Bessemer City, 470 U.S. 564,
575 (1985). Therefore, the Commission discerns no basis in which 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 finding no discrimination.
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 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:
April 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations