01971091
03-03-1999
Vernon Davis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Vernon Davis, )
Appellant, )
) Appeal No. 01971091
v. ) Agency No. 4-F-2645-93
) Hearing No. 340-95-3522X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), and color (black),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Appellant alleges he was discriminated
against when: (1) the agency denied or otherwise failed to provide
appellant a copy of the individual Knowledge, Skills, and Ability (KSA)
summary sheet in connection with his application for promotion to higher
level positions within the Maintenance department, which was generated
on or around December 27, 1991; and (2) whether this denial or failure
prevented him from taking appropriate training courses from January of
1992, through April of 1993, to improve his KSA score.<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 PS-3 Custodian at the agency's
Burbank, California facility, who also served as a temporary supervisor
in Mail Processing on occasion, filed a formal EEO complaint with the
agency on August 20, 1993, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). Following a hearing, the
AJ issued a Recommended Decision (RD) finding no discrimination.
The AJ concluded that appellant established a �minimal� prima facie
case of discrimination because a non-Black employee (CW1) testified that
appellant's supervisor (S1) �took care of� CW1 by sharing KSA summaries
with him and providing him counseling about available training. The AJ
then concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that it was appellant's, not S1's,
responsibility to obtain the KSA summary sheet and request training,
that appellant was either on medical leave or acting as a supervisor in
Mail Processing during much of this time, and that after appellant filed
a grievance, S1 offered him the opportunity to take training courses
on agency time. The AJ concluded that appellant did not establish that
more likely than not, the agency's articulated reasons were a pretext to
mask race discrimination. In reaching this conclusion, the AJ noted that
appellant presented no evidence that S1 was responsible for obtaining KSA
summary sheets or providing counseling for training, and in any event, he
did so for another Black employee, which, while demonstrating favoritism
among employees, defeats any inference that the favoritism was race-based.
The AJ further noted that it was unrealistic for appellant to expect
the agency to train him in maintenance while he was on sick leave or was
serving as an acting supervisor in mail processing. Moreover, appellant
was never precluded from obtaining training and in fact did not avail
himself of such training when offered as a resolution to his grievance.
The agency's FAD adopted the AJ's RD. Appellant makes no new contentions
on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, 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
racial animus. We discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record.
Therefore, after a careful review of the record, including 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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that appellant's formal complaint contained
additional allegations. After examining these allegations, the
Administrative Judge (AJ) noted that they were all untimely or failed to
state a claim, and neither party objected to the AJ's decision to dismiss
these issues on procedural grounds. As neither party has raised error
in the dismissal of these additional issues, we note that such issues,
as set forth in the AJ's Recommended Decision (RD) at pages 2-3, and 7-11,
are not before us, and will not be addressed herein.