01973449
03-01-1999
Paul E. Turner, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Areas), Agency.
Paul E. Turner v. United States Postal Service
01973449
March 1, 1999
Paul E. Turner, )
Appellant, )
)
v. ) Appeal No. 01973449
) Agency No. 4B-140-1043-96
William J. Henderson, ) EEOC No. 160-96-8698X
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Areas), )
Agency. )
______________________________)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against him in violation of the Age Discrimination
in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. Section 621
et seq. The Commission accepts the appeal in accordance with EEOC Order
No. 960.001.
Appellant filed a formal EEO complaint alleging discrimination on the
basis of age (DOB: 6/19/37), when he was not selected for the position
of Customer Services Manager, EAS-18, in the agency's Buffalo, NY,
facility under vacancy announcement #95-53, dated November 9, 1995.
Following the agency's investigation, appellant requested a hearing before
an EEOC administrative judge. Finding that there were no material facts
in dispute, on December 31, 1996, the AJ issued a Recommended Decision
pursuant to 29 C.F.R. � 1614.109(e)(3), finding no discrimination.
In his decision, the AJ found that appellant had established a prima
facie case of discrimination based on age in that all of the selectees
were significantly younger than he was. However, the AJ also found that
the agency had articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, one of the panel members testified that appellant
provided only basic answers to his interview questions. Another member of
the panel testified that appellant did not answer some of the interview
questions correctly. Although appellant testified that he was more
qualified than the selectees because he had more years of experience,
the AJ found that appellant failed to rebut the agency's reasons for his
nonselection. Furthermore, the AJ found that appellant failed to provide
sufficient evidence that he was treated differently during the interview,
or that the decision was influenced by his age. In sum, the AJ found that
appellant had failed to prove, by a preponderance of the evidence, that
the agency's reasons for its actions were pretext for discrimination.
On January 10, 1997, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
As appellant's complaint constitutes a claim of disparate treatment,
the agency properly 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 Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Although this analysis was developed in the context of Title VII, it is
equally applicable to claims brought under the ADEA with one important
distinction. Loeb v. Textron, Inc., 600 F. 2d 1003 (1st Cir. 1979). In
an ADEA case, appellant is required to demonstrate that age was a
determinative factor, and not simply a factor as in a Title VII case,
in the adverse employment action. Id. at 1019. Applying this legal
standard to appellant's complaint, the Commission finds that the agency
successfully rebutted any initial inference of discrimination raised
by appellant by articulating legitimate, nondiscriminatory reasons
for the action at issue. Specifically, panel members testified that
appellant gave poor responses to interview questions. Furthermore,
despite appellant's length of experience, he was not the best qualified
for the position.
After a careful review of the record, the Commission finds that
appellant failed to establish that the agency's reasons for its action
were pretext for discrimination. We note appellant has not raised any
new contentions on appeal. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
that it did not discriminate against appellant, as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
____March 1, 1999__ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations