Joyce E. Berry,
Complainant,

v. 

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 01200627361

 Hearing No. 340-2005-00213X

Agency No. 1F-891-0007-04

DECISION


On March 20, 2006, complainant filed an appeal from the agency's March
14, 2006 final action concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.  For the following reasons, the Commission AFFIRMS the
agency's final action.

At the time of events giving rise to this complaint, complainant worked
as a Christmas Casual Appointment in the flat sorter department.

On February 23, 2004, complainant filed an EEO complaint claiming that
she was discriminated against on the basis of age (D.O.B. 08/14/52) when
on December 23, 2003, she was informed that she would not be selected
to return as a casual employee.

At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ).  Complainant timely
requested a hearing and the AJ held a hearing on January 19, 2006, and
issued a decision on January 24, 2006.  The AJ found that the agency
articulated a legitimate, nondiscriminatory reason for not rehiring
complainant as a casual employee.  The AJ observed that the Manager,
Distribution Operations, and the Supervisor, Distribution Operations,
testified that complainant was not rehired as a casual employee for the
flat sorter operation because she was deficient in her performance as a
flat sorter machine clerk.  The AJ rejected complainant's contention that
the Supervisor told her that she would not be rehired due to her age.
The AJ further found that complainant did not refute her Supervisor's
assertion that she had difficulties in keeping up with the physical
demands and speed of work required of a flat sorter machine clerk.
The AJ noted that the ages of the three flat sorter machine clerks
that the Supervisor recommended not be rehired were 18, 40 and 40.
According to the AJ, the ages of the flat sorter machine clerks that the
Supervisor recommended be rehired were 21, 27, 31, 36, 48, 492 and 59.
The agency subsequently issued a final action implementing the AJ's
decision.  Thereafter, complainant filed the instant appeal.

In response, the agency asserts that age was not a factor in the
Supervisor's decision against rehiring complainant.  The agency states
that the Supervisor recommended three other employees be rehired and they
were either close to complainant's age or older.  The agency notes that
the Supervisor did not recommend complainant be rehired on the flat sorter
because it was very demanding work, requiring speed, agility and strength.
According to the agency, the Supervisor observed complainant frequently
fall behind in loading the flat sorter machine and struggle to keep up
with its speed.

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an 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).  An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment because of such individual's age.
29 U.S.C. §623(a)(1).  When a complainant alleges that he or she has
been disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).  "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the outcome."
Id.  

Upon review of the record, including complainant's appeal and the agency's
opposition, the Commission finds that the AJ's decision finding no age
discrimination is supported by substantial evidence.  The Commission
agrees with the AJ's finding that the agency set forth legitimate,
nondiscriminatory reasons for its decision not to rehire complainant.
The Commission agrees with the AJ's finding that complainant failed
to establish by a preponderance of the evidence that the decision not
to rehire her was due to discriminatory motivation.  The fact that the
Supervisor recommended for rehiring two clerks who were close in age to
complainant and one clerk who was significantly older than complainant
is persuasive evidence that the refusal to rehire complainant was not
related to her age.

The agency's decision finding no age discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations

June 15, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The Supervisor's recommendation to rehire the 49 year old flat sorter
machine clerk was rejected by the Manager.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036