01972777
08-26-1999
John P. Kavanagh, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.
John P. Kavanagh, )
Appellant, )
) Appeal No. 01972777
v. ) Agency No. 4D270115095
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atl. Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Appellant alleges that he was discriminated against on the basis of age
(DOB: 7/3/49) when he was not recommended to the Promotion Review Board
(PRB) for a position as Manager, Post Office Operations (EAS-25).
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that during the relevant time, appellant was employed
as a Manager, Post Office Operations (EAS-23) at an agency facility
in Lancaster, Pennsylvania. Believing he was discriminated against
as referenced above, appellant sought EEO counseling and subsequently
filed a complaint on July 11, 1995. Appellant initially requested a
hearing before an EEOC Administrative Judge but subsequently withdrew
his request. Accordingly, the agency issued its final decision pursuant
to 29 C.F.R. � 1614.110.
The FAD found that appellant failed to establish a prima facie case of
age discrimination because similarly situated individuals within his
protected class were recommended to the PRB. The FAD further found
that PRB independently reviewed approximately twenty-seven applications
and selected ten candidates for an interview, from which five were
recommended to the selecting official. Appellant was not among the ten
applicants selected for an interview. Since the applicants' ages were
not identified on the applications and since four of the five recommended
applicants were within appellant's protected class, the agency concluded
that appellant failed to establish pretext. The agency also concluded
that appellant failed to show that �but for� his age, he would have been
recommended for the position.
It is from this decision appellant now appeals. On appeal, appellant
contends that he withdrew his request for a hearing because the agency
refused to comply with repeated discovery requests and that as a result,
he was unable to make his prima facie case. The agency requests that
we affirm its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
the Commission disagrees with the agency that appellant failed to
establish a prima facie case of age discrimination. In reaching this
conclusion, we note that appellant established that he was over forty
years of age; that he applied and was qualified for the position at issue;
but was not recommended. Accordingly, we find that appellant established
a prima facie case of age discrimination. See Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).
However, the Commission finds that appellant failed to present evidence
that more likely than not, the agency's articulated reason for not
recommending appellant was a pretext for unlawful discrimination.
In reaching this conclusion, we note that appellant was not one of the
ten applicants selected for an interview. Accordingly, he was not in the
group from which those recommended were selected. Although appellant
asserts on appeal that the agency refused to respond to his discovery
requests, upon review of the individual discovery requests and the
responses filed, we find that the agency did respond, albeit not to
appellant's satisfaction. In light of the fact that the appellant
was 46 years old and the majority of the recommended applicants were
between 43 and 47 years old, we find no evidence that the information
appellant alleges the agency refused to produce would have substantiated
his claim that �but for� his age, he would have been selected for an
interview and consequently recommended for the position. In conclusion,
we find that age was not a consideration in the selection process for
the position at issue. See Clay v. Department of Veterans Affairs,
EEOC Appeal No. 01973314 (April 29, 1999).
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
August 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations