E. Stuart Ziman, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas) Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01974118 (E.E.O.C. Feb. 18, 2000)

01974118

02-18-2000

E. Stuart Ziman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas) Agency.


E. Stuart Ziman v. United States Postal Service

01974118

February 18, 2000

E. Stuart Ziman, )

Appellant, )

)

v. ) Appeal No. 01974118

) Agency No. 1F-908-1002-94

William J. Henderson, ) Hearing Nos. 340-96-3169X

Postmaster General, ) 340-96-3172X

United States Postal Service, ) 340-96-3415X

(Pacific/Western Areas) )

Agency. )

_______________________________)

DECISION

Appellant timely initiated an appeal from the final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of sex (male) and age (D.O.B:

10/22/1940), 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.

In his complaint, appellant alleged that the agency discriminated

against him when he was involuntarily reassigned to the East Long Beach,

California Station as a Supervisor of Customer Services. This appeal

is accepted by the Commission in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's final decision is AFFIRMED.

At the time of this complaint appellant was employed by the agency as a

Real Estate Specialist, Level 22, in Los Angeles, California. In 1992,

the agency began a reorganization which included the elimination of four

Western Region (Real Estate) Facilities Departments, including the Los

Angeles department. Only the San Bruno, California Facilities Department

was retained, and the total number of employees in the Western Region

were reduced from thirty-three to nine. Prior to the reorganization,

Los Angeles had four Real Estate Specialists: appellant, another male,

and a female who were over 40 years of age, and a female who was under

40 years of age. All four of the Real Estate Specialists had the same

supervisor (S1), and each applied for the positions at San Bruno, and were

considered for either a Level 23 or Level 25 position. Eleven Facilities

Departments throughout the country underwent the same reorganization,

reduction in staff, and selection process.

Following an investigation, appellant requested a hearing before an

Equal Employment Opportunity Commission (EEOC) administrative judge

(AJ). After the hearing, the AJ issued a Recommended Decision (RD)

finding no discrimination. On March 18, 1997, the agency issued a final

decision, adopting the AJ's findings of no discrimination. It is from

this decision that appellant now appeals.

San Bruno Selections

With respect to the San Bruno selections, the AJ found that appellant

established a prima facie case of discrimination based on sex. Appellant,

as an applicant, was considered for positions at San Bruno. He was not

selected; however, one of his Los Angeles co-workers, who is female,

was selected for a Level 25 position.

However, the AJ determined that the agency articulated a legitimate

nondiscriminatory reason for its actions. When making his selections,

the selecting official (SO) at San Bruno first referred to the "top

performers" list, then to S1's recommendations. The SO chose the

selectee because S1 identified her as a "top performer", and gave her

his highest rating. S1 did not identify appellant as a top performer.

The AJ found that appellant failed to establish that the agency's

articulated reason for its actions were pretextual. Specifically, the

AJ found that the majority of the SO's selections were male employees.

Furthermore, the selectee was well qualified for the position. She had

considerable relevant experience, and appellant was not able to refute

her numerous special awards, projects, and assignments. Also, appellant

did not present any persuasive evidence that S1 unfairly evaluated him.

Regarding age discrimination, the AJ found that appellant failed to

establish a prima facie case of age discrimination. The female who

was selected from Los Angeles is older than appellant. Assuming that

appellant had established a prima facie case of discrimination based on

age, the AJ found that appellant failed to establish that the agency's

legitimate, nondiscriminatory reasons for its actions were pretextual.

Specifically, the SO selected two men who were over 40 years of age,

for the Level 25 positions, and four men and one woman, whose ages ranged

from 37 to 65, for the Level 23 positions.

Memphis Selection

The AJ found that appellant failed to establish a prima facie case of

sex and age discrimination with respect to his co-worker selected for a

position at the Memphis Facilities Department. Assuming that appellant

had established a prima facie case of sex and age discrimination, the

AJ found that appellant failed to establish that the agency's legitimate

nondiscriminatory reasons for its actions were pretextual. Appellant was

not considered for a position in Memphis because he did not submit his

application. Appellant's co-worker who was selected for a position at

Memphis was considered only because after she learned that she had not

been selected at San Bruno, she contacted the Headquarters Facilities

Program Analyst (Analyst) and informed her that she was willing to work

anywhere in the country. As a result, her application was forwarded

to Memphis, where Facilities openings existed. The AJ found that had

appellant also contacted the Analyst and expressed an interest similar

to his co-worker's, perhaps his application might have been forwarded

to Memphis for consideration. However, appellant did not contact the

Analyst, and he can not establish that he was discriminated against

by any selecting official, including the Analyst and the Memphis SO,

because they did not know he was interested in a position in Memphis,

or anywhere in the country.

In sum, the AJ found that appellant failed to establish a prima facie

case of sex and age discrimination when he was involuntarily reassigned

to the East Long Beach Station as Supervisor of Customer Service, Level

16, with saved grade and pay. The record is clear that 22 Level-22,

unassigned Real Estate Specialists, both male and female, under and over

40 years of age, were reassigned due to the reorganization to supervisory

positions in operations, such as Customer Service.

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 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).

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that the AJ's RD sets forth the relevant facts, and properly

analyzes the appropriate regulations, policies, and laws applicable to

appellant's complaint. Therefore, the Commission discerns no basis to

disturb the AJ's findings of no discrimination. Accordingly, it is the

decision of the Equal Employment Opportunity Commission to AFFIRM the

agency's final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 18, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________________

Date

__________________________

Equal Employment Assistant