01A24134_r
11-04-2002
Daniel M. Moran, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Daniel M. Moran v. Federal Deposit Insurance Corporation
01A24134
November 4, 2002
.
Daniel M. Moran,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A24134
Agency No. FDICEO-990128
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The record reveals that during the relevant time, complainant was employed
as a Compliance Examiner Assistant (Trainee), CG-570-7, at the agency's
Division of Compliance and Consumer Affairs in Princeton, Illinois.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 30, 1999, alleging that he was discriminated
against on the bases of age and reprisal for prior EEO activity when
on September 24, 1999, he was terminated from his probationary career
conditional appointment.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its final decision, the agency determined that complainant failed to
establish a prima facie case of age. However, the agency determined that
complainant established a prima facie case of retaliation. The agency
further determined that it articulated a legitimate, nondiscriminatory
reason for its action, namely complainant failed to improve his writing
skills despite extensive training and counseling; and failed to meet
the expectations and requirements of the job. The agency found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
Complainant raised no new contentions on appeal.
The record in this case contains several affidavits from complainant's
Supervisor and Regional Director and Deputy Regional Director of
the Division of Compliance and Consumer Affairs, who recommended
and reviewed complainant's termination. The Supervisor stated that
he made the recommendation for complainant's termination, because of
complainant's failure to improve his writing skills despite extensive
training and counseling; and lack of ability to perform his task. In his
affidavit, the Supervisor stated �This recommendation was totally based
on Complainant's failure to show improvement in his writing skills,
which were critical for the position for which Complainant was hired.
It was not based on age or reprisal.�
In his affidavit, the Deputy Regional Director stated that the Supervisor
gave complainant many opportunities to improve his writing skills
which he had not improved to perform commensurate with his grade level.
The Deputy Regional Director further stated that complainant's termination
was strictly based on ability. Moreover, the Deputy Regional Director
stated that complainant was not placed on a Performance Improvement Plan
because it is not required for a new probationary employee.
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the evidence supports a finding
that the agency articulated legitimate, non-discriminatory reasons
for its employment actions. Complainant has not demonstrated that
the agency's articulated reasons for its actions were a pretext for
discrimination. Therefore, the agency's finding of no 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
November 4, 2002
__________________
Date