01994674
09-26-2001
Arch R. Edwards Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Arch R. Edwards v. United States Postal Service
01994674
9/26/01
.
Arch R. Edwards
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01994674
Agency No. 1-H-342-1015-96
DECISION
Arch R. Edwards (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of age (DOB: 9/15/29), in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. �1614.405.
For the following reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issue on appeal is whether complainant was subjected to discrimination
on the above-cited basis when he was not hired for a Casual position
due to an inconclusive medical assessment on September 11, 1995.
BACKGROUND
The record reveals that complainant applied for a seasonal temporary
position with the agency's Manasota Processing and Distribution Center,
in Manasota, Florida. By letter dated September 11, 1995, the agency
informed complainant that he was ineligible for temporary employment
because the findings of his recent medical assessment were inconclusive.
In his complaint dated March 14, 1996, complainant stated that he
interpreted the agency's September 11th notice to mean that he was an
older candidate and he would not be considered for one of the temporary
positions. Complainant added in his affidavit to the EEO Investigator
that if he had been told that he could have obtained an additional
medical examination at his own expense and submitted it to the agency,
he would have done so.
At the conclusion of the investigation, the agency informed complainant of
his right to request a hearing or a final agency decision. Complainant
requested a hearing, but failed to attend the pre-hearing conference or
to otherwise respond to the queries of the Administrative Judge (AJ)
of the EEOC. Subsequently, the AJ remanded the case to the agency
for adjudication and the agency dismissed the complaint for failure
to prosecute. Complainant appealed the FAD to the Commission and in
a prior decision, the Commission reversed the agency and ordered that
it adjudicate the case based on the information on record. See Arch
R. Edwards v. United States Postal Service, EEOC Appeal No. 01981512
(November 19, 1999).
In a final agency decision dated April 23, 1999, the agency found that
complainant failed to establish a prima facie case of age discrimination.
In the alternative, the agency found that even if complainant established
a prima facie case of discrimination, he failed to show that the reasons
articulated by the agency management for denying him casual employment
was a pretext for discrimination. In this regard, the agency noted
that its Human Resources Specialist established that the policy of the
Manasota facility did not require applicants being considered for 21 day
employment to incur the expense of obtaining a second medical evaluation,
when the pre-employment medical assessment conducted by the agency
was inconclusive. Thus, instead of sending a request to complainant
for additional medical information, the agency sent complainant the
ineligibility notice.
CONTENTIONS ON APPEAL
Neither complainant nor the agency raises any new contentions or
arguments on appeal. Nonetheless, the agency urges the Commission to
affirm its FAD.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in an ADEA case is a
three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). Complainant has
the initial burden of establishing a prima facie case of discrimination.
A prima facie case of discrimination based on age is established where
complainant has produced sufficient evidence to show that he is a member
of a protected class by virtue of his age and he was accorded treatment
less favorable than that given to persons otherwise similarly situated who
are not members of his protected class. Potter v. Goodwill Industries
of Cleveland, 518 F. 2d 864 (6th Cir. 1975); Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant establishes a prima facie case, the burden of production
shifts to the agency to articulate a legitimate non-discriminatory
reason for the adverse employment action. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 252 (1981). If the agency articulates
a reason for its actions, the burden of production then shifts back
to complainant to establish that the agency's proffered explanation is
pretextual, and that the real reason is discrimination or retaliation.
Throughout the complaint process, complainant retains the burden of proof
to establish discrimination by a preponderance of the evidence. It is
not sufficient �to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination.� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
Moreover, in an ADEA case, the ultimate burden remains on complainant to
demonstrate that age was a determinative factor in the sense that, �but
for� her age, she would not have been subjected to the action at issue.
See Loeb, 600 F.2d at 1003.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; See also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically, the
agency's Human Resource Specialist (HRS) (age 36 at the time she gave the
statement to the EEO Investigator) averred that complainant underwent a
medical assessment by the agency's medical staff and it was determined
that additional medical documentation was needed because complainant
had an increased risk factor for bleeding since he was on blood thinners.
Based on the Manasota's policy at the time, the HRS stated that she did
not ask complainant to incur the expense of a second medical examination
since the job was for a 21 day duration. Additionally, the HRS averred
that during that same time period she sent letters of ineligibility
due to an inconclusive medical to two other applicants Comparative #1
(DOB:5/20/55) and Comparative #2 (DOB: 9/29/67). Further, the HRS
stated that complainant's age was not a factor in her decision to deny
him casual employment.
Based on the above discussion, we find that the agency has articulated
legitimate non-discriminatory reason for not selecting complainant
for a casual position. Because the agency articulated a legitimate
non-discriminatory reason for the challenged personnel action, complainant
must demonstrate that this reason is pretextual and/or that the agency
was motivated by discriminatory animus in not hiring him for a casual
position.
The record is devoid of any evidence submitted by complainant to rebut
the reasons articulated by the agency for its action. As previously
mentioned, in order to prevail on his allegation of discriminatory
treatment, complainant must show that but for his age, he would not have
been subjected to the challenged agency action. See Duke v. Uniroyal
Inc., 928 F.2d 1443 (4th Cir, 1991)(Court held that in the context of
the ADEA, complainant must prove with reasonable probability that but for
his age, the adverse employment action would not have taken place); see
also St. Mary's Honor Center at 523-524. Complainant did not meet this
burden in any of the evidence he submitted in support of his allegation
of discriminatory treatment.
CONCLUSION
Therefore, the agency's finding of no age discrimination in relation to
complainant's non-selection for the Casual position is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
9/26/01
Date