0120080177
04-10-2009
John E. Westbrook, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John E. Westbrook,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080177
Agency No. 1F-937-0022-06
Hearing No. 480-2007-00295X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 30, 2007, final order concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against him on the bases
of race (Caucasian), national origin (Scottish), religion (Baptist), color
(white), age (54), and reprisal for prior protected EEO activity when
on May 18, 2006, he was not awarded a Maintenance Mechanic's position.
Following an investigation by the agency, complainant, a Mail Processing
Clerk, PS-5 requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing finding no discrimination.
The AJ found that the agency had articulated legitimate nondiscriminatory
reasons for its action. The agency explained that complainant was
not selected for the position because he was not included within the
"in-craft" register at the time of the selection, and thus, was not within
the pool of qualified applicants considered to fill this vacancy.1 The
agency indicated that the selectee however, appeared in the "in-craft"
register, had completed all prerequisites for the position, and had scored
the highest of all candidates who had taken the maintenance mechanic
test that had been given to gain entrance into the "in-craft" register.
Notwithstanding, his lack of inclusion in the "in-craft" register of
eligible candidates, complainant argued that he had entered into a
verbal agreement with union officials that indicated that he would be
given priority consideration or be selected for the position. The AJ
noted that complainant had grieved this issue and had failed to prevail.
The AJ found that complainant failed to show that the agency's legitimate
nondiscriminatory reasons were pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
The Commission finds that even if we assume arguendo that complainant
established a prima facie case of discrimination as to all of his
bases, the agency articulated legitimate nondiscriminatory reasons for
its actions, namely that complainant was not eligible for selection
because he was not on the "in-craft" register. Further, we also find
that complainant failed to demonstrate that the agency's reasons were
pretext for discrimination. We find that complainant has not provided
any evidence and the record does not show that complainant's protected
bases were considered with respect to this decision. Accordingly,
the Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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. 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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
04/10/09
__________________
Date
1 Complainant had taken the written portion of the test to be "in-craft"
but had not completed the interview portion of the process.
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0120080177
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013