Willie Pender, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01a00573 (E.E.O.C. Feb. 18, 2000)

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.