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.