Mark R. Sather, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 6, 2003
01A32454_r (E.E.O.C. Jun. 6, 2003)

01A32454_r

06-06-2003

Mark R. Sather, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mark R. Sather v. United States Postal Service

01A32454

June 6, 2003

.

Mark R. Sather,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A32454

Agency No. 1E-853-0029-99

Hearing No. 350-A2-8018

DECISION

Complainant initiated an appeal from the agency's final order concerning

his complaint of unlawful employment discrimination in violation of

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. For the following reasons, the Commission

affirms the agency's final order.

The record reveals that complainant, a Tractor Trailer Operator at the

agency's Processing and Distribution Center, Phoenix, Arizona facility,

filed a complaint on April 2, 1999, alleging that the agency had

discriminated against him on the basis of age (DOB 8-23-55) when:

Complainant was terminated from his Tractor Trailer Operator Position

with the agency on April 5, 1998 after he failed a random drug test.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of age discrimination. Specifically, the AJ found that complainant failed

to demonstrate that similarly situated employees not in complainant's

protected classes were treated differently under similar circumstances

when complainant was subjected to a random drug screen in which he

tested positive for amphetamines. The AJ found that two younger,

comparison employees cited by complainant were not similarly situated

because they were employed by the agency as mail handlers, not tractor

trailer operators. The AJ further found that complainant submitted

no evidence, either direct or circumstantial, sufficient to create an

inference that he was terminated because of his age. The agency's final

order implemented the AJ's decision.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected class.

Accordingly, we AFFIRM the agency's final order which fully implemented

the AJ's decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

June 6, 2003

__________________

Date