01982963
07-05-2000
Robert D. Vernon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert D. Vernon v. United States Postal Service
01982963
July 5, 2000
Robert D. Vernon, )
Complainant, )
)
v. ) Appeal No. 01982963
) Agency No. 1E-000-0001-94
William J. Henderson, ) Hearing No. 350-95-8200X
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged 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. The appeal is accepted by
the Commission in accordance with the provisions of 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).<1>
ISSUE PRESENTED
The issue presented is whether complainant has established that the agency
discriminated against him based on sex (male) and age (58) when he was
not selected for the position of Manager, Remote Encoding Center, EAS-25.
BACKGROUND
In a complaint dated May 2, 1994, complainant, then a Manager,
Maintenance, EAS-23, alleged that the agency discriminated against him
as delineated in the above-entitled statement �Issue Presented.� The
agency conducted an investigation, provided complainant with a copy
of the investigative report, and advised complainant of his right to
request either a hearing before an EEOC administrative judge (AJ) or an
immediate final agency decision (FAD). Complainant requested a hearing.
A hearing was held, and thereafter, the AJ issued a recommended decision
(RD) finding no discrimination, received by the agency on February 6,
1996. On March 27, 1996, the agency adopted the finding in the RD and
issued a FAD finding no discrimination. It is from this decision that
complainant now appeals.
ANALYSIS AND FINDINGS
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 (AJ) 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).
In this case, the AJ found that complainant had established a prima
facie case of sex and age discrimination, in that he was non-selected in
favor of a female candidate under the age of 40. The AJ further found
that the agency, through the testimony of the selecting official, had
articulated a legitimate, non-discriminatory reason for its actions;
to wit, that the selectee had greater and much more recent experience
in plant management (the year preceding the selection at issue, while
complainant had managed a plant for 60 days, 13 or 14 years prior to the
selection), and that the selecting official was pleased with the progress
the selectee had made at her plant during her tenure. Finally, the AJ
found that complainant did not establish that the agency's explanation was
merely a pretext for discrimination, noting among other considerations
that complainant attributed the selectee's selection to the fact that
the selecting official knew her and had been able to observe her work.
Upon review of the record, including the complaint file and associated
investigative report, the hearing transcript and exhibits, the AJ's
decision, and the parties' statements on appeal, the Commission finds
that the AJ's decision, in all material respects, correctly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. The Commission therefore discerns no basis to disturb the
AJ's decision.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
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:
July 5, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
Date
1On 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.