01a00573
02-18-2000
Willie Pender, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Willie Pender, )
Complainant, )
)
v. ) Appeal No. 01A00573
) Agency No. 4-D-230-0192-97
William J. Henderson, ) Hearing No. 120-98-9184X
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
The Commission finds that the agency's October 18, 1999 decision
finding that the agency did not discriminate against complainant based on
complainant's race (Black), sex (male), and age (over 40), and disability
(mental), was proper.<1> Complainant alleged in his complaint that he
was discriminated against when he was given a letter abolishing his job
effective June 21, 1997.
Complainant requested a hearing before an EEOC Administrative Judge.
An administrative judge issued a decision dated September 22, 1999
without holding a hearing. The administrative judge found that the
material facts were not in dispute. The administrative judge found that
all of the Distribution/Window Clerk positions with Saturdays off were
originally abolished because the Manager determined that the mail volume
was higher on weekdays and that more staffing was needed on weekdays.
The administrative judge found that some of the abolishment notices were
canceled. The administrative judge found: "[The Manager] abolished
jobs of Clerks of all races, both males and females and that some
were over 40 years of age and some were under 40 years of age based on
consideration of mail processing needs and days off." The administrative
judge found that the comparative employee referenced by complainant
was not similarly situated to complainant because complainant was a
Distribution Clerk who did not perform the duties of a regular Window
Clerk such as the comparative employee. The administrative judge found
that complainant failed to prove by a preponderance of the evidence that
he was discriminated against on the bases of his race, sex, or age.
In the agency's October 18, 1999 decision the agency concurred with the
decision of the administrative judge. After reviewing complainant's
arguments on appeal and the complete record, the Commission finds that
the administrative judge correctly determined that complainant failed
to show by a preponderance of the evidence that the decision to abolish
his job was motivated in any way by prohibited discriminatory animus.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 18, 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 of mailing. I certify that
the 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.