01976178
10-29-1999
Robert G. Sutkoff, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Robert G. Sutkoff, )
Appellant, )
) Appeal No. 01976178
v. ) Agency Nos. 1-G-772-1531-95;
) 1-G-772-1272-96
) Hearing Nos. 330-96-8215X;
) 330-96-8217X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning 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), national origin (Anglo), color (white) and sex (male) when
his Training Technician bid was rescinded in January 1995 and when,
in June 1995, he was not permitted to perform the duties of a bid he
no longer held.<1> The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that appellant, a MPFSM Clerk at the agency's North
Houston Processing and Distribution facility in Houston, Texas, filed
two formal EEO complaints with the agency. At the conclusion of the
investigation, appellant requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing on the consolidated complaints, the AJ
issued a Recommended Decision (RD) finding no discrimination. The FAD
adopted the RD.
The AJ concluded that appellant established a prima facie case of
discrimination on each of his alleged bases because a similarly situated
employee, outside of his protected classes, was treated more favorably
in so far as she was awarded the Training Technician bid and was also
permitted to perform duties on a bid she no longer held. The AJ then
concluded that the agency articulated a legitimate, nondiscriminatory
reason for its actions, namely, that the employee, who was treated more
favorably, had more seniority than appellant.
The AJ found that appellant did not establish that more likely than
not, the agency's articulated reason was a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that while
the awarding of the Training Technician bid was seriously flawed and
while permitting an employee to perform duties on a job for which she
no longer held a bid may have been an administrative error, both actions
were motivated by seniority and not by factors prohibited under Title VII.
On appeal, appellant contends that the AJ mishandled his hearing
and did not act on his request to draw an adverse inference based on
the agency's processing of his complaint. Appellant also introduces
additional evidence to support his argument that his qualifications for
the Training Technician bid were superior to those of the employee to
whom it was awarded.
Upon review, the Commission finds that the RD summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We remind appellant that an AJ has broad discretion in the conduct of
a hearing. See 29 C.F.R. �1614.109(c); Malley v. Department of the Navy,
EEOC Appeal No. 01951503 (May 22, 1997). We find, as did the AJ, that
while appellant was well qualified for the Training Technician bid,
the evidence does not prove his qualifications were plainly superior
to those of the employee to whom the bid was awarded. We agree with
the AJ that appellant did not establish, by a preponderance of the
evidence, that discriminatory animus motivated the agency's action.
The AJ based her decision on a detailed assessment of the record and
the credibility of the witnesses. In general, the Commission accepts an
AJ's credibility determination. Esquer v. United States Postal Service,
EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of
the Treasury, EEOC Request No. 05900589 (July 26, 1990). We discern no
reason to disturb the AJ's finding of no discrimination. Accordingly,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
October 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The Commission notes that both of
the bids referred to are classified as �best qualified� bids which
means that they are not awarded solely on seniority. However, when
the applicants for a �best qualified� bid are equally qualified,
seniority can be a factor in the award.