01971615
03-12-1999
Marvin E. Simmons, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest areas), Agency.
Marvin E. Simmons v. United States Postal Service
01971615
March 12, 1999
Marvin E. Simmons, )
Appellant, )
) Appeal No. 01971615
v. ) Agency No. 4H-370-1295-94
) Hearing No. 250-95-8135X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Southeast/Southwest areas), )
Agency. )
______________________________)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning his complaint of unlawful employment
discrimination, in violation of the Age Discrimination in Employment
Act (ADEA) of 1967, as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
Appellant filed a formal EEO complaint alleging discrimination on the
basis of age (DOB 7/11/33) when he was not converted to a Part-time
Flexible (PTF) employee, on or about July 31, 1994. Following the
agency's investigation, an administrative judge (AJ), pursuant to EEOC
Regulation 29 C.F.R. � 1614.109(e)(1), issued a recommended decision
of no discrimination without a hearing. The agency thereafter adopted
the AJ's findings and recommendation. It is from this decision that
appellant now appeals.
The undisputed record reveals that on or about July 31, 1994, appellant's
Postmaster (RO) submitted the names of appellant and two other employees
(C1 and C2) to Human Resources for a determination of their veterans
status and ultimate selection as PTF employees. RO was authorized
to convert three out of a total of six employees to PTF positions.
Only qualified veterans were permitted conversion to PTF positions.
Human Resources determined that appellant did not meet the veteran status
qualifications. Accordingly, RO informed appellant of Human Resources'
determination and that he would, therefore, not be converted to a PTF
employee. Since no other employee met the veteran status qualifications,
only C1 and C2 were converted to PTF positions.
After viewing the evidence in the light most favorable to appellant,
the AJ found that appellant failed to present a prima facie case of
age discrimination. Specifically, the AJ found that appellant was not
eligible for veterans preference and, accordingly, did not meet the
qualifications of the position. Appellant presented evidence that he
was discharged (separated) from the Armed Forces on September 20, 1955.
Under the Veterans Readjustment Appointment authority (VRA), in order
to qualify for veterans preference, appellant had to be a Vietnam era
veteran (i.e. "a veteran who served on active duty anytime during August
5, 1964 to May 7, 1975") or a Post-Vietnam era veteran (i.e. "a veteran
who entered active duty . . . after May 7, 1975 . . ."). The AJ also
noted that appellant did not allege or present any evidence that he may
have, alternatively, qualified for veteran status by showing that he was,
at least, a 30 percent service-connected disabled veteran. In addition,
appellant did not dispute the Vietnam veteran status of the two selectees,
nor did he present any other similarly situated individual, outside his
protected group, who was treated more favorably.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981);
Loeb v. Textron, Inc., 660 F.2d 1003 (1st Cir. 1979). The Commission
concludes that, in all material respects, the AJ accurately set forth the
facts giving rise to the complaint and the law applicable to the case.
We further find that the AJ correctly determined that appellant failed
to establish discrimination based on age.
We also find that assuming appellant did establish a prima facie
case of age discrimination, the agency articulated a legitimate,
non-discriminatory reason for failing to convert appellant to a PTF
employee and appellant presented no evidence of pretext or that age was
a factor in the agency's employment action.
Since appellant offered no additional evidence or argument in support of
his claim on appeal, we discern no legal basis to reverse the agency's
finding of no discrimination. Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the 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:
3/12/99
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations