05a00484
05-11-2000
Terrence Shalow, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Terrence Shalow v. United States Postal Service
05A00484
May 11, 2000
Terrence Shalow, )
Complainant, )
)
) Request No. 05A00484
) Appeal No. 01981680
William J. Henderson, ) Agency No. 1-G-711-0001-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Terrence
Shalow v. United States Postal Service, EEOC Appeal No. 01981680 (March
2, 2000).<1> EEOC Regulations provide that the Commission may, in its
discretion, grant a party's request to reconsider a decision issued under
the regulation set forth at 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified as 29 C.F.R. �1614.405(a)), if the party demonstrates that:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or
The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405(b)).
Complainant filed an EEO complaint claiming that he was subjected to
age discrimination when on August 19 and 28, 1997, he was spot checked
while employees over the age of forty were not subjected to the same
requirements. In its final agency decision (FAD), the agency dismissed
the complaint for failure to state a claim. Specifically, the agency
determined that to allege age discrimination, the complainant must be
at least forty years old at the time of the alleged discrimination.
Here, complainant was only thirty-nine years old at the time the alleged
discriminatory events occurred. The previous decision affirmed the
agency's FAD.
In his Request to Reconsider (RTR), complainant reiterates his argument
that he has suffered "reverse discrimination" based on his younger age.
Complainant argues that when youth is "viewed in a negative light"
by employers, it should be part of the protected class.
Based on a careful review of the record, the Commission finds that
complainant fails to meet any of the criteria of 29 C.F.R. �1615.405.
The record indicates that at the relevant time, complainant was
thirty-nine years old. Therefore the previous decision correctly
concluded that complainant does not fall under the protection of the
Age Discrimination in Employment Act (ADEA), and properly affirmed the
agency's dismissal for failure to state a claim.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01981680 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
May 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
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.