01a60702
05-04-2006
Paul A. Caissie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul A. Caissie v. United States Postal Service
01A60702
May 4, 2006
.
Paul A. Caissie,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60702
Agency No. 6F-000-0010-05
DECISION
Complainant initiated an appeal from a final decision concerning his
complaint of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a applicant for employment Raleigh, North Carolina, Information
Technology Center facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on June 17, 2005, alleging that
he was discriminated against on the basis of age (56) when:
Complainant was not selected for the position of Computer Performance
Specialist, Sr, in the Business Data Management office at the Raleigh
Information Technology Service Center, vacancy number 09920/04-297 EAS-23,
Vacancy Announcement.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its decision, dated October 12, 2005, the agency concluded that
complainant was among four equally qualified candidates for two vacancies.
Information regarding complainant's work habits was considered by the
recommending and selecting officials and complainant was not selected
after an agency supervisor commented that complainant was frequently
away from his desk and socialized too much with other employees.
On appeal, complainant contends that his experience and knowledge is
much greater than that possessed by the selectees and he has never
been counseled, reprimanded or otherwise alerted to any performance or
conduct issues regarding his work habits until after he was notified of
his non-selection. The agency requests that we affirm its final decision.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In the instant case, complainant has shown that he belongs to a protected
group (namely, over 40 years of age), that he applied and was qualified
for the position of Computer Performance Specialist, Sr., that he was
not selected, and that the selectees were not in complainant's protected
age group. Although the Commission finds that complainant properly
established a prima facie case of age discrimination, we also find
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that the record
contains an affidavit from complainant's supervisor<1> regarding her
observations of complainant's work habits, explaining that in April
2005, she mentioned the need for complainant to stay focused on the
assigned work. We find no evidence in the record from which to conclude
that the agency's decision was motivated by discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and the agency's response we hereby AFFIRM the
agency's final decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
May 4, 2006
__________________
Date
1At the time of the selection process, complainant was employed by a
government contractor, assigned to the agency where he was supervised
at least in part, by agency employees.