01983707
03-22-2000
Donald M. Durkin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Headquarters), Agency.
Donald M. Durkin v. United States Postal Service
01983707
March 22, 2000
Donald M. Durkin, )
Complainant, )
) Appeal No. 01983707
v. ) Agency No. HI004394
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Headquarters), )
Agency. )
)
DECISION
Complainant filed a timely appeal from final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (White), religion (Presbyterian), sex (male), reprisal
(prior EEO activity), and age (48), in violation of Title VII of the
Civil Rights Act of 1964, 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.<1> The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the Commission AFFIRMS
the FAD as CLARIFIED herein.
The record reveals that during the relevant time, complainant was employed
as a Postal Inspector at the agency's Postal Inspection Service, New
Orleans Division. Complainant contends that management willfully acted
to defeat any opportunity for his promotion as evidenced by the following:
Claim 1:
1. He was placed in a non-team assignment.
2. He was not provided with equipment or supplies to perform his tasks.
3. He was not provided with a vehicle for five years whereas a junior
inspector was provided with one.
4. He was not provided with a calculator during his five year audit
assignment.
Claim 2:
He was denied training opportunities when he was not selected for either
of two vacancies in the Team Leader position in New Orleans.
Claim 3:
1. He was assigned to a prevention assignment for many years which
provided no opportunity for advancement.
2. His current assignment does not give him recognition.
3. A junior female inspector received a preferential criminal assignment.
Claim 4:
1. He was not selected for an interview for two team leader positions,
constituting a continuing pattern of prohibiting and training for
advancement.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion
of the investigation, complainant was notified of his right to request
either a FAD or a hearing before an EEOC Administrative Judge, but did
not respond.<2> The agency issued its FAD finding no discrimination.
Initially, the FAD found that all four claims should be dismissed for
failure to state a claim and/or because they are moot by virtue of
complainant's retirement in 1995. We disagree with this determination.
Instead, we find that complainant's claim is that the agency deliberately
acted with the purpose of preventing him from advancing in his career,
as evidenced by the actions set forth in each claim, and that he in
fact never received any sort of promotion during this time as a result
of his diminished qualifications as reflected in lack of supervisory
experience and relatively poorer performance. Based on a review
of the entire record, we find that complainant's articulation of his
claim is sufficiently specific to identify a "harm," and does therefore
"state a claim." See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994) and 64 Fed. Reg. 37644,37656, (1999)
(to be codified and hereinafter referred to at 29 C.F.R. �1614.107).
Furthermore, these claims have not been rendered "moot" by complainant's
retirement because, except on the basis of age, he could potentially
recover compensatory damages and attorney's fees as the prevailing
party in the case. See Swanson v. Department of the Army, EEOC Appeal
No. 01983636 (July 23, 1999) and 29 C.F.R. �1614.107. We CLARIFY the
FAD accordingly.
In its merits determination, regarding claim 1, claim 2, and claim 4,
the FAD concluded that complainant failed to establish prima facie cases
of race, sex, religion, or age discrimination, because he presented
no evidence that similarly situated individuals not in his protected
classes were treated differently under similar circumstances. The FAD
also found that complainant failed to establish a prima facie case of
reprisal because he was unable to demonstrate a nexus between his prior
EEO activity and the instant complaint. Additionally, the FAD found
that complainant failed to present any evidence to support an inference
of discriminatory or retaliatory animus.<3>
On appeal, complainant contends that the agency failed to consider a
number of his arguments. He also argues that the agency improperly
disclosed information from his EEO claims processing, and now contends
that he was forced to retire, apparently claiming constructive
discharge.<4> The agency disputes complainant's arguments on appeal,
and requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission agrees with the agency that complainant failed to establish a
prima facie case of discrimination or reprisal, on claim 1, claim 2, and
claim 4, because the record is devoid of any evidence to suggest that any
of the actions at issue were motivated by discriminatory or retaliatory
animus. Additionally, we also find that complainant failed to establish
a prima facie case of discrimination or reprisal regarding claim 3 for
the same reason, and we CLARIFY the FAD accordingly. Even in his own
statements, complainant asserts only that management treated him unfairly,
never providing him with an opportunity for supervisory experience, never
providing him with the conditions he needed to be successful, and never
selecting him for promotion. However, he fails to state why he believes
that these actions were borne of discrimination or reprisal, nor does
he provide any credible evidence to support his discrimination claim.
Accordingly, we find that there is nothing in the record from which to
infer that any of the actions taken by management were the result of
discriminatory animus toward complainant's race, sex, religion or age,
or that they were the result of reprisal.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
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:
3/22/00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
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.
2On appeal, complainant contends that he requested a hearing before an AJ,
but that the agency has delayed the proceedings. However, our review of
the record reveals that complainant failed to respond to the agency's
Notice regarding his right to request a hearing, issued on December
9, 1997. Having failed to respond to this Notice, the complainant is
now precluded from requesting a hearing.
3With respect to claim 4, the FAD additionally found that the selectees
for these vacancies were not similarly situated to complainant because
they were level 24 inspectors, and complainant was a level 23 inspector.
4Complaints regarding EEO processing are not properly addressed in this
forum. We advise complainant to contact the agency official responsible
for the quality of complaint processing, and we remind the agency that
they have an obligation to resolve such complaints. Also, we cannot
consider complainant's claim of constructive discharge because he did not
amend his complaint to include this claim, and it was not investigated.
Dragos v. U.S. Postal Service, EEOC Request No. 05940563 (January 19,
1995).