Alphonso L. Moore, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic areas), Agency.

Equal Employment Opportunity CommissionMar 12, 1999
01971255 (E.E.O.C. Mar. 12, 1999)

01971255

03-12-1999

Alphonso L. Moore, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic areas), Agency.


Alphonso L. Moore v. United States Postal Service

01971255

March 12, 1999

Alphonso L. Moore, )

Appellant, )

) Appeal No. 01971255

v. ) Agency No. 1D-272-1007-95

) Hearing No. 140-95-8200X

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic )

areas), )

Agency. )

______________________________)

DECISION

Appellant timely appealed the final decision of the United States Postal

Service (agency), concerning his complaint of unlawful employment

discrimination, in violation of the Age Discrimination in Employment

Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is

accepted by the Commission in accordance with the provisions of EEOC

Order No. 960.001.

Appellant filed a formal EEO complaint alleging discrimination on

the basis of age (DOB 1/1/45) when he was not selected for one of two

Supervisory Distribution Operations, EAS-16, positions. Following the

agency's investigation, a hearing took place before an administrative

judge (AJ) who subsequently issued a recommended decision of no

discrimination. The agency thereafter adopted the AJ's findings and

recommendation. It is from this decision that appellant now appeals.

The record reveals that at the time of the complaint, appellant was

employed by the agency as a Mail Handler, PS-04, in the Greensboro

Bulk Mail Center. Appellant, and 22 other individuals, submitted

applications for two positions of Supervisor, Distribution Operations,

EAS-16. Eighteen (18) of the 23 applicants were over the age of 40,

and five were under the age of 40. The Review Board Committee, composed

of C1 (50 years of age), C2 (43 years of age), and C3 (43 years of age),

chose eleven applicants to interview. Appellant was not chosen for an

interview. After completing the interviews, the Board recommended five

candidates to the selecting official (SO). The recommended applicants

were 43, 31, 40, 50, and 34 years of age, respectively. The applicants

ultimately selected were both under the age of 40.

The AJ found that appellant presented a prima facie case of age

discrimination. Specifically, the AJ found that appellant demonstrated

that: (1) he was 49 years old at the time of the selection; (2) he

applied for the position; (3) he was qualified for the position; (4)

he was not selected for the position; and (5) the selectees were not in

appellant's protected class.

The AJ also found that the agency articulated a legitimate,

non-discriminatory reason for its employment action. The agency asserted

that appellant was not interviewed by the Board because he scored less

in the area of knowledge, skills and abilities (KSAs) than the applicants

interviewed by the Board.

The AJ determined that appellant did not show that the agency's reasons

for its actions were unworthy of credence, or that the agency was more

likely motivated by discrimination. Specifically, the AJ found that

the record did not reveal that appellant was more qualified than the

selectees. In addition, appellant did not dispute the Board's established

matrix regarding the KSA scores. Lastly, the AJ noted that the appellant

did not present any specific probative evidence that the Board (ages 50,

43, and 43) was motivated by age discrimination.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that the AJ's recommended decision properly analyzed appellant's

complaint as a disparate treatment claim. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993); Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 253-56 (1981); Loeb v. Textron, Inc., 660 F.2d 1003 (1st

Cir. 1979). The Commission concludes that, in all material respects,

the AJ accurately set forth the facts giving rise to the complaint, and

the law applicable to the case. We further find that the AJ correctly

determined that appellant failed to establish discrimination based on age.

Since appellant offered no additional evidence or argument in support of

his claim on appeal, we discern no legal basis to reverse the agency's

finding of no discrimination. Accordingly, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's final

decision finding no discrimination.

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. 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:

3/12/99

_______________ _______________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations