Robert D. Vernon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 5, 2000
01982963 (E.E.O.C. Jul. 5, 2000)

01982963

07-05-2000

Robert D. Vernon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert D. Vernon v. United States Postal Service

01982963

July 5, 2000

Robert D. Vernon, )

Complainant, )

)

v. ) Appeal No. 01982963

) Agency No. 1E-000-0001-94

William J. Henderson, ) Hearing No. 350-95-8200X

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________________)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning his equal

employment opportunity (EEO) complaint, which alleged 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. The appeal is accepted by

the Commission in accordance with the provisions of 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. �1614.405).<1>

ISSUE PRESENTED

The issue presented is whether complainant has established that the agency

discriminated against him based on sex (male) and age (58) when he was

not selected for the position of Manager, Remote Encoding Center, EAS-25.

BACKGROUND

In a complaint dated May 2, 1994, complainant, then a Manager,

Maintenance, EAS-23, alleged that the agency discriminated against him

as delineated in the above-entitled statement �Issue Presented.� The

agency conducted an investigation, provided complainant with a copy

of the investigative report, and advised complainant of his right to

request either a hearing before an EEOC administrative judge (AJ) or an

immediate final agency decision (FAD). Complainant requested a hearing.

A hearing was held, and thereafter, the AJ issued a recommended decision

(RD) finding no discrimination, received by the agency on February 6,

1996. On March 27, 1996, the agency adopted the finding in the RD and

issued a FAD finding no discrimination. It is from this decision that

complainant now appeals.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

administrative judge (AJ) will be upheld if supported by substantial

evidence in the record. Substantial evidence is defined as �such relevant

evidence as a reasonable mind might accept as adequate to support a

conclusion.� Universal Camera Corp. v. National Labor Relations Board,

340 U.S. 474, 477 (1951) (citation omitted). A finding regarding

whether or not discriminatory intent existed is a factual finding.

See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).

In this case, the AJ found that complainant had established a prima

facie case of sex and age discrimination, in that he was non-selected in

favor of a female candidate under the age of 40. The AJ further found

that the agency, through the testimony of the selecting official, had

articulated a legitimate, non-discriminatory reason for its actions;

to wit, that the selectee had greater and much more recent experience

in plant management (the year preceding the selection at issue, while

complainant had managed a plant for 60 days, 13 or 14 years prior to the

selection), and that the selecting official was pleased with the progress

the selectee had made at her plant during her tenure. Finally, the AJ

found that complainant did not establish that the agency's explanation was

merely a pretext for discrimination, noting among other considerations

that complainant attributed the selectee's selection to the fact that

the selecting official knew her and had been able to observe her work.

Upon review of the record, including the complaint file and associated

investigative report, the hearing transcript and exhibits, the AJ's

decision, and the parties' statements on appeal, the Commission finds

that the AJ's decision, in all material respects, correctly summarized

the relevant facts and referenced the appropriate regulations, policies,

and laws. The Commission therefore discerns no basis to disturb the

AJ's decision.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

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:

July 5, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

Date

1On 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.