01985975x
02-08-2000
Frank B. Wiater, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Frank B. Wiater, )
Complainant, )
)
v. ) Appeal No. 01985975
) Agency No. 1J609-1041-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Frank B. Wiater (complainant) timely initiated an appeal to the Equal
Employment Opportunity Commission (EEOC) from the final decision of the
agency concerning complainant's claim that the agency violated the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.. The appeal is accepted in accordance with EEOC Order No. 960,
as amended.
The issue on appeal is whether the agency discriminated against
complainant on the basis of his age (born - 2/27/44) when, on or about
July 22, 1996, his request for reinstatement was denied.
Complainant filed a formal EEO complaint raising the issue stated above
and the complaint was investigated. Thereafter, complainant requested a
final agency decision (FAD) without an EEOC hearing. The FAD was issued
and found no discrimination. Complainant now appeals the FAD.
The record shows that complainant was employed with the agency from 1975
until 1993, when he resigned from the agency. In May 1996, complainant
requested reinstatement with the agency and on or about July 22, 1996,
was informed that he would not be considered for reinstatement.
The agency found that complainant failed to establish a prima facie
case of age discrimination in that he did not establish that he was
treated less favorably than similarly situated employees outside of his
protected group. However, assuming arguendo that complainant established
the necessary inference of age discrimination, the agency found that
it articulated a legitimate, nondiscriminatory reason for its action,
that three (3) months before the complainant's request for reinstatement
was received, the agency's Area Manager, Human Resources (the Manager)
sent notification (the Notice) to various agency officials that all
career hiring was to stop effective immediately. The agency found that
complainant failed to show that this reason was pretextual; according
to the agency, no career appointments were authorized at complainant's
Mail Center during the relevant time period because of the Notice.
On appeal, complainant contends that the agency's stated explanation for
its action is clearly pretextual. According to complainant, there is no
evidence that the Manager's Notice was still in effect when complainant
requested reemployment with the agency.
Complainant's complaint constitutes a claim of disparate treatment and
the agency analyzed it under the three-tiered analytical framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas
Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981);
Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
Applying these legal standards, the Commission finds that the
agency correctly concluded that complainant failed to prove, by a
preponderance of the evidence, that he was discriminated against based
on his age.<1><0> Complainant submitted no evidence, other than his
own speculation, that the Notice was not in effect during the relevant
time period. Accordingly, after carefully considering the record,
including complainant's contentions on appeal, we find that complainant
failed to prove that he was discriminated against based on his age.
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:
Feb. 8, 2000
DATE Carlton 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1 We agree with the agency that complainant failed to establish a prima
facie case of age discrimination. However, we note that, in order to
establish a prima facie case of discrimination, it is not necessary
to show that a comparative individual, from outside the complainant's
protected group, was treated differently. O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308 (1996); Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n.4
(September 18, 1996).
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