01990321
05-22-2000
Catherine Davis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes / Mid West Areas), Agency.
Catherine Davis v. United States Postal Service
01990321
May 22, 2000
Catherine Davis, )
Complainant, )
)
v. )
) Appeal No. 01990321
William J. Henderson, ) Agency No. 1-J-609-1034-96
Postmaster General, )
United States Postal Service )
(Great Lakes / Mid West Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the basis of age (Date of Birth: May 25, 1932), in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq.<1> Complainant alleges she was discriminated
against when her request for reemployment was denied. The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the Commission
affirms the FAD.
BACKGROUND
The record reveals that during the relevant time period, complainant
was a retired, former agency employee who had, until July 1, 1995,
been employed as a Laborer Custodian at the agency's Bulk Mail Center
in Chicago, Illinois (the facility). On March 16, 1996, complainant
wrote to the facility manager seeking to be reemployed. In response,
on May 16, 1996, the agency wrote to complainant stating: "[a]t the
present time, the Great Lakes Area has a hold on all career hiring,
and in addition, we have no Custodial vacancies at the present time."
Later complainant learned that five Labor Custodian positions at the
facility had been filled by persons younger than she at about the time
she had requested reemployment. Believing herself to be a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint on December 9, 1996. The agency accepted the complaint
and conducted an investigation. At the conclusion of the investigation,
complainant requested that the agency issue a final agency decision.
The FAD concluded that complainant failed to establish a prima facie case
of age-based discrimination because she "failed to show that age was the
determining factor" behind the agency's action. In addition the FAD
found that "[c]omplainant has not presented any evidence to indicate
that any agency official harbored a discriminatory animus toward her
protected group, nor has she proven that the agency's reasons for its
actions were unworthy of belief."
From the FAD, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981); and St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993), the Commission finds that
complainant failed to prove that the agency's articulated reason for
its actions was a pretext for discrimination.<2>
In reaching this conclusion, we note that the agency's explanation for
its actions was that complainant was not eligible to be placed in the
position for which she had applied. The agency's evidence shows that
at the time of complainant's request for reemployment, there was in
place a general moratorium on hiring for career positions, including
the position complainant sought. There was, however, an exception to
the hiring freeze for applicants entitled to a veteran's preference.
The applicants who ultimately were placed in the custodial positions were
entitled to veteran's preferences but complainant was not. This evidence
was essentially uncontroverted by complainant.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
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 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 it does not affect our ultimate decision here, we note that
the agency incorrectly found that complainant had not made out a prima
facie case of age-based discrimination because she did not prove that age
was a determinative factor in the agency's decision. In a case alleging
discrimination under the ADEA, appellant need not demonstrate that age
was a determinative factor as part of the prima facie case. Instead,
that question is addressed when the trier of fact makes a decision on
the ultimate issue of discrimination. See O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308 (1996); Terrell v. Department of Housing and
Urban Development, EEOC Appeal No. 01961030 (October 25, 1996), request
for reconsideration denied, EEOC Request No. 05970336 (November 20, 1997).