01976453
08-05-1999
Yesun Park, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Yesun Park, )
Appellant, )
) Appeal No. 01976453
v. ) Agency No. 1F-933-1050-95
) Hearing No. 340-96-3718X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her 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 she was discriminated against on the bases of
race (Asian) and national origin (Korean) when she was not selected for
a Distribution Clerk career position in 1990. 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 during the relevant time, appellant was a
Transitional Employee Clerk at the agency's Processing and Distribution
Center in Bakersfield, California. Appellant filed a formal EEO
complaint with the agency on October 6, 1995, alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigation, appellant received a copy of the investigative report.
Following a hearing, the AJ issued a Recommended Decision (RD) finding
no discrimination.
The AJ concluded that appellant, who was qualified for the position
of Distribution Clerk, established a prima facie case of race and
national origin discrimination when non-Asian and non-Korean applicants
were selected. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its action, namely, that on
Hiring Worksheet No. 90-00022 appellant, who was ranked 13 out of 15, was
not ranked highly enough to qualify under the �rule of three� for any of
the four selections and that on Hiring Worksheet No. 90-00029, appellant
was not one of the five ranked applicants. The AJ found that appellant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination. In reaching this
conclusion, the AJ found that there was no credible evidence indicating
that appellant was incorrectly ranked or that management intentionally
generated hiring worksheets excluding appellant from consideration.
The agency's FAD adopted the AJ's RD.
On appeal, appellant alleges for the first time that she has established
a prima facie case of retaliation. We note that, at any time before the
completion of the agency's investigation, a complainant may amend her
complaint to add another statutory basis for an alleged discriminatory
occurrence without changing the identity of her claim. Dragos v. United
States Postal Service, EEOC Request No. 05940563 (January 19, 1995).
However, appellant made no formal motion to amend her complaint, and
furthermore, we find that there is no evidence to support a finding that
appellant participated in prior EEO activity. Appellant also contends
that the AJ erred when he credited management's testimony over hers.
The agency requests that we affirm its FAD.
Upon review, the Commission finds that the AJ's RD summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. We note that appellant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
appellant's race or national origin. Accordingly, we discern no basis
to disturb the AJ's findings of no discrimination which were based on a
detailed assessment of the record and the credibility of the witnesses.
Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996). Therefore, after a careful review of the record,
including appellant's contentions on appeal and arguments and evidence
not specifically addressed in this decision, 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:
August 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations