John M. Olin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.

Equal Employment Opportunity CommissionNov 21, 2000
01a05764 (E.E.O.C. Nov. 21, 2000)

01a05764

11-21-2000

John M. Olin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.


John M. Olin v. United States Postal Service

01A05764

November 21, 2000

.

John M. Olin,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(S.E./S.W. Region)

Agency.

Appeal No. 01A05764

Agency No. 1-H-342-0012-97

Hearing No. 150-98-8043X

DECISION

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

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), 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> Complainant alleges he was

discriminated against on the bases of race (White), sex (male), age

(D.O.B. 5/25/52) and reprisal (prior EEO activity) when on April 10,

1997, he was not selected for the position of EAS-17 Quality Improvement

Specialist. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant was

employed as a EAS-17 General Supervisor at the agency's Manasota Mail

Processing Center facility in Manasota, Florida. Under the agency's

nationwide reorganization, complainant was downgraded to the EAS-16 level

with saved benefits and pay and assigned to the position of Supervisor,

Customer Service at another agency facility. Complainant appealed his

demotion to the Merit Systems Protection Board (MSPB) claiming age and

sex discrimination, and the MSPB issued a decision reinstating complainant

to the EAS-17 level. While the MSPB found that the agency had failed to

properly follow appropriate reduction-in-force procedures in assigning

complainant to a lower level position, it also found that his allegation

of discrimination was groundless. Due to the MSPB decision, complainant

was assigned to the position of Manager, Customer Service at the agency's

facility in Lake Wales, Florida. Subsequently, complainant applied

for the position at issue, but was informed that he was not selected on

April 10, 1997.

Believing he was a victim of discrimination, complainant filed a formal

EEO complaint with the agency on May 21, 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 initially found that complainant established a prima facie case

of race, age and sex discrimination. Specifically, the AJ found that

complainant demonstrated that he is a member of protected classes and

was qualified for the position at issue, but the position was given to

an individual outside of complainant's protected groups (Black female;

age 35). The AJ further found that the agency articulated legitimate,

nondiscriminatory reasons for its action. In so finding, the AJ noted

that the selecting official testified that he developed job interview

questions to determine the best qualified person for the position, and

complainant was not selected as he had difficulty answering interview

questions which the best qualified candidate was able to answer.

The AJ found that complainant did not establish that more likely than

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

discrimination or retaliation. In reaching this conclusion, the AJ found

that complainant failed to challenge the selecting official's testimony

regarding his interview, nor did he articulate reasons supporting a

finding that his qualifications for the position were plainly superior

to those of the selectee. In addition, the AJ found that complainant

failed to establish a prima facie case of retaliation as he failed to

prove a causal link between his prior EEO activity and his nonselection

for the position at issue.

The FAD implemented the AJ's decision. Complainant makes no contentions

on appeal, and the agency requests that we affirm its final decision.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We agree with the AJ's

findings that complainant failed to present evidence that any of the

agency's actions were in retaliation for complainant's prior EEO activity

or were motivated by discriminatory animus toward complainant's race,

age or sex. We discern no basis to disturb the AJ's decision. Therefore,

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

decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 21, 2000

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.