Donald M. Durkin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Headquarters), Agency.

Equal Employment Opportunity CommissionMar 22, 2000
01983707 (E.E.O.C. Mar. 22, 2000)

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).