Jeffrey Mayes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 12, 2000
01a01837 (E.E.O.C. May. 12, 2000)

01a01837

05-12-2000

Jeffrey Mayes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jeffrey Mayes v. United States Postal Service

01A01837

May 12, 2000

Jeffrey Mayes, )

Complainant, )

) Appeal No. 01A01837

v. ) Agency No. HO018597

) Hearing No. 170-98-8586X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final action

concerning his equal employment opportunity (EEO) complaint of unlawful

employment 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. <1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). Complainant

alleges he was discriminated against on the bases of race/national origin

(African-American), sex (male), and age (44) when he was not selected

for a Manager of Program Evaluation position, which would have been a

promotion, with the agency. For the following reasons, the Commission

AFFIRMS the agency's final action.

The record reveals that complainant, a Manager of Finance at an Ohio

facility of the agency, filed a formal EEO complaint with the agency on

June 13, 1997, alleging that the agency had discriminated against him as

referenced above. At the conclusion of the investigation, complainant

received a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). The AJ issued a decision

without a hearing, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of discrimination based on age or national origin. Specifically, the

AJ found that complainant failed to demonstrate that similarly situated

employees not in his protected classes were treated differently under

similar circumstances. The individual selected for the promotion (the

selectee) was 43 years of age during the time at issue<2> and the record

was void of evidence regarding the selectee's national origin.

In addition, the AJ concluded that complainant established a prima facie

case of discrimination based on race and sex because the selectee,

not in his protected class, was selected for the promotion. The AJ

further found that the agency articulated legitimate, nondiscriminatory

reasons for its actions, i.e., the selectee had prior experience directly

related to the duties of the promotion position, the selectee's abilities

complemented those of the selecting official, and the selectee possessed

good customer service skills.

The AJ concluded that complainant did not establish that more likely

than not, the agency's articulated reasons were a pretext to mask

unlawful discrimination. In reaching this conclusion, the AJ found that

complainant did not show himself more qualified for the promotion than

the selectee and that he made mere assertions about agency actions that

inferred discrimination.

The agency's final action implemented the AJ's decision. Complainant

makes no new contentions on appeal, and the agency requests that we

affirm its final action.

After a careful review of the record, including complainant's contentions

on appeal, the agency's response, and arguments and evidence not

specifically addressed in this decision, we AFFIRM the agency's final

action.

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 12, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

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 a complainant can establish a prima facie case of age

discrimination where there are comparators in the same protected class,

there must exist an inference that the complainant was discriminated

against because of his age. "[S]uch an inference cannot be drawn from the

replacement of one worker with another worker insignificantly younger."

O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996).

The record did not contain any other evidence from which such an inference

can be drawn.