01971614
06-09-1999
John A. Clark, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
John A. Clark, )
Appellant, )
)
v. ) Appeal No. 01971614
) Agency No. 1H391104495
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
dismissing his Equal Employment Opportunity (EEO) 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. Appellant alleges that
he was discriminated against on the bases of race (White), sex (male) and
in reprisal for prior EEO activity when it became apparent to him that
he would not be considered for an Officer in Charge (OIC) assignment.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as MODIFIED.
The record reveals that appellant was employed as a Mail Handler at the
agency's Medgar Wylie Evers General Mail Facility in Jackson, Mississippi.
Believing he was discriminated against as referenced above, appellant
sought EEO counseling and subsequently filed a complaint on August 29,
1995. The complaint was accepted for processing. At the conclusion of
the investigation, appellant initially requested a hearing before an
EEOC Administrative Judge but subsequently withdrew his hearing request
and asked the agency to issue a final decision. In its FAD, the agency
dismissed the claim pursuant to 29 C.F.R. � 1614.107(a) because appellant
had failed to establish that he was aggrieved by the agency's actions.
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103;
� 1614.106(a). Upon review, we find that the agency erred in dismissing
the instant complaint for failure to state a claim. Appellant believed
that he would not be considered for an OIC assignment because of his race,
sex and prior EEO activity. Since these bases are protected under Title
VII and his allegation, if proven, would render him �aggrieved,� we find
that he has stated a claim. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).<1>
The record establishes that in May 1995, appellant made an appointment
to submit PS Form 991 to his manager for an OIC position. His manager
was unable to keep the appointment. Six days later, appellant returned
to his manager's office for the purpose of submitting a new PS Form 991.
The secretary refused to �log� in the application. The manager stated
that it was not office protocol to log OIC applications in because an
applicant has to be on the OIC list provided by Human Resources in order
to be considered. Moreover, the manager testified that at the time
appellant requested the appointment, he was unaware of any vacancies.
Appellant asserts that he had applied for an OIC position on numerous
occasions, and we note that appellant's name appears on the OIC list
generated by Human Resources.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
we find that appellant has failed to establish a prima facie case of
discrimination on any basis. In reaching this conclusion, we note that
appellant's name was on the appropriate OIC assignment list generated by
Human Resources, but that there is no evidence that an OIC assignment
vacancy existed at the time appellant became aware that he would not
be considered for one.<2> Accordingly, we find that appellant was not
adversely affected by the agency's action, i.e. the failure to consider
him for a nonexistent vacancy.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
MODIFIED herein.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
June 9, 1999
DATE Carlton M. Hadden, Acting Director
1 The FAD alternately concluded that although appellant established
prima facie cases of race and sex discrimination, he failed to
establish by a preponderance of the evidence that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext
for unlawful discrimination. For the reasons stated herein, we
disagree with the agency that appellant established prima facie
cases of race and sex discrimination.
2 There is no evidence that a vacancy had been filled within the
forty-five (45) days preceding appellant's EEO contact. See 29 C.F.R. �
1614.107(b).