01a01837
05-12-2000
Jeffrey Mayes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jeffrey Mayes v. United States Postal Service
01A01837
May 12, 2000
Jeffrey Mayes, )
Complainant, )
) Appeal No. 01A01837
v. ) Agency No. HO018597
) Hearing No. 170-98-8586X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination 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. <1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). Complainant
alleges he was discriminated against on the bases of race/national origin
(African-American), sex (male), and age (44) when he was not selected
for a Manager of Program Evaluation position, which would have been a
promotion, with the agency. For the following reasons, the Commission
AFFIRMS the agency's final action.
The record reveals that complainant, a Manager of Finance at an Ohio
facility of the agency, filed a formal EEO complaint with the agency on
June 13, 1997, alleging that the agency had discriminated against him as
referenced above. 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 discrimination based on age or national origin. Specifically, the
AJ found that complainant failed to demonstrate that similarly situated
employees not in his protected classes were treated differently under
similar circumstances. The individual selected for the promotion (the
selectee) was 43 years of age during the time at issue<2> and the record
was void of evidence regarding the selectee's national origin.
In addition, the AJ concluded that complainant established a prima facie
case of discrimination based on race and sex because the selectee,
not in his protected class, was selected for the promotion. The AJ
further found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, i.e., the selectee had prior experience directly
related to the duties of the promotion position, the selectee's abilities
complemented those of the selecting official, and the selectee possessed
good customer service skills.
The AJ concluded that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found that
complainant did not show himself more qualified for the promotion than
the selectee and that he made mere assertions about agency actions that
inferred discrimination.
The agency's final action implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final action.
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 12, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Although a complainant can establish a prima facie case of age
discrimination where there are comparators in the same protected class,
there must exist an inference that the complainant was discriminated
against because of his age. "[S]uch an inference cannot be drawn from the
replacement of one worker with another worker insignificantly younger."
O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996).
The record did not contain any other evidence from which such an inference
can be drawn.