01974118
02-18-2000
E. Stuart Ziman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas) Agency.
E. Stuart Ziman v. United States Postal Service
01974118
February 18, 2000
E. Stuart Ziman, )
Appellant, )
)
v. ) Appeal No. 01974118
) Agency No. 1F-908-1002-94
William J. Henderson, ) Hearing Nos. 340-96-3169X
Postmaster General, ) 340-96-3172X
United States Postal Service, ) 340-96-3415X
(Pacific/Western Areas) )
Agency. )
_______________________________)
DECISION
Appellant timely initiated an appeal from the final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (male) and age (D.O.B:
10/22/1940), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his complaint, appellant alleged that the agency discriminated
against him when he was involuntarily reassigned to the East Long Beach,
California Station as a Supervisor of Customer Services. This appeal
is accepted by the Commission in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's final decision is AFFIRMED.
At the time of this complaint appellant was employed by the agency as a
Real Estate Specialist, Level 22, in Los Angeles, California. In 1992,
the agency began a reorganization which included the elimination of four
Western Region (Real Estate) Facilities Departments, including the Los
Angeles department. Only the San Bruno, California Facilities Department
was retained, and the total number of employees in the Western Region
were reduced from thirty-three to nine. Prior to the reorganization,
Los Angeles had four Real Estate Specialists: appellant, another male,
and a female who were over 40 years of age, and a female who was under
40 years of age. All four of the Real Estate Specialists had the same
supervisor (S1), and each applied for the positions at San Bruno, and were
considered for either a Level 23 or Level 25 position. Eleven Facilities
Departments throughout the country underwent the same reorganization,
reduction in staff, and selection process.
Following an investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) administrative judge
(AJ). After the hearing, the AJ issued a Recommended Decision (RD)
finding no discrimination. On March 18, 1997, the agency issued a final
decision, adopting the AJ's findings of no discrimination. It is from
this decision that appellant now appeals.
San Bruno Selections
With respect to the San Bruno selections, the AJ found that appellant
established a prima facie case of discrimination based on sex. Appellant,
as an applicant, was considered for positions at San Bruno. He was not
selected; however, one of his Los Angeles co-workers, who is female,
was selected for a Level 25 position.
However, the AJ determined that the agency articulated a legitimate
nondiscriminatory reason for its actions. When making his selections,
the selecting official (SO) at San Bruno first referred to the "top
performers" list, then to S1's recommendations. The SO chose the
selectee because S1 identified her as a "top performer", and gave her
his highest rating. S1 did not identify appellant as a top performer.
The AJ found that appellant failed to establish that the agency's
articulated reason for its actions were pretextual. Specifically, the
AJ found that the majority of the SO's selections were male employees.
Furthermore, the selectee was well qualified for the position. She had
considerable relevant experience, and appellant was not able to refute
her numerous special awards, projects, and assignments. Also, appellant
did not present any persuasive evidence that S1 unfairly evaluated him.
Regarding age discrimination, the AJ found that appellant failed to
establish a prima facie case of age discrimination. The female who
was selected from Los Angeles is older than appellant. Assuming that
appellant had established a prima facie case of discrimination based on
age, the AJ found that appellant failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were pretextual.
Specifically, the SO selected two men who were over 40 years of age,
for the Level 25 positions, and four men and one woman, whose ages ranged
from 37 to 65, for the Level 23 positions.
Memphis Selection
The AJ found that appellant failed to establish a prima facie case of
sex and age discrimination with respect to his co-worker selected for a
position at the Memphis Facilities Department. Assuming that appellant
had established a prima facie case of sex and age discrimination, the
AJ found that appellant failed to establish that the agency's legitimate
nondiscriminatory reasons for its actions were pretextual. Appellant was
not considered for a position in Memphis because he did not submit his
application. Appellant's co-worker who was selected for a position at
Memphis was considered only because after she learned that she had not
been selected at San Bruno, she contacted the Headquarters Facilities
Program Analyst (Analyst) and informed her that she was willing to work
anywhere in the country. As a result, her application was forwarded
to Memphis, where Facilities openings existed. The AJ found that had
appellant also contacted the Analyst and expressed an interest similar
to his co-worker's, perhaps his application might have been forwarded
to Memphis for consideration. However, appellant did not contact the
Analyst, and he can not establish that he was discriminated against
by any selecting official, including the Analyst and the Memphis SO,
because they did not know he was interested in a position in Memphis,
or anywhere in the country.
In sum, the AJ found that appellant failed to establish a prima facie
case of sex and age discrimination when he was involuntarily reassigned
to the East Long Beach Station as Supervisor of Customer Service, Level
16, with saved grade and pay. The record is clear that 22 Level-22,
unassigned Real Estate Specialists, both male and female, under and over
40 years of age, were reassigned due to the reorganization to supervisory
positions in operations, such as Customer Service.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
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 RD sets forth the relevant facts, and properly
analyzes the appropriate regulations, policies, and laws applicable to
appellant's complaint. Therefore, the Commission discerns no basis to
disturb the AJ's findings 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 (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 18, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________
Date
__________________________
Equal Employment Assistant