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