Frankie J. Dean, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01974331 (E.E.O.C. Apr. 2, 1999)

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