01995404
09-21-2001
Gary A. Weiss, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary A. Weiss v. United States Postal Service
01995404
09-21-01
.
Gary A. Weiss,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995404
Agency No. 4C-442-0183-97
Hearing No. 220-99-5052X
DECISION
On June 24, 1999, Gary A. Weiss (hereinafter referred to as complainant)
filed a timely appeal from the May 27, 1999, final decision of the United
States Postal Service (hereinafter referred to as the agency) concerning
a complaint of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �
621 et seq. The appeal is timely filed (see 29 C.F.R. � 1614.402(a))
and is accepted in accordance with 29 C.F.R. � 1614.405.
Complainant filed a formal complaint alleging discrimination (constructive
discharge) based on age (56) when the agency created an executive service
position four months after his retirement. An EEOC Administrative Judge
(AJ) issued a decision without a hearing, finding that the agency did
not discriminate against complainant. On appeal, complainant contended
that a hearing was necessary to determine whether his supervisor told him
prior to his retirement that a new executive position was contemplated.
Having reviewed the record and statements on appeal, we find no reason
to disturb the decision, below. The AJ correctly found that complainant
failed to establish a prima facie case of constructive discharge, and
his issuance of a decision without a hearing was proper. Consequently,
complainant has not shown that the agency discriminated against him.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
____09-21-01______________
Date