Catherine Davis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes / Mid West Areas), Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01990321 (E.E.O.C. May. 22, 2000)

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).