Orrin Thompson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (New York Metro and Northeast Areas), Agency.

Equal Employment Opportunity CommissionJul 24, 2000
01973094 (E.E.O.C. Jul. 24, 2000)

01973094

07-24-2000

Orrin Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Metro and Northeast Areas), Agency.


Orrin Thompson v. United States Postal Service

01973094

July 24, 2000

.

Orrin Thompson,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(New York Metro and Northeast Areas),

Agency.

Appeal No. 01973094

Agency Nos. 1A-126-1045-94

1A-126-1057-94

Hearing Nos. 160-95-8450X

160-95-8451X

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concerning his claims that the agency discriminated against him 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> Pursuant to 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405),

the Commission accepts the complainant's appeal from the agency's final

decision in the above-entitled matter. For the reasons that follow,

the FAD is AFFIRMED.

At the time of the alleged discriminatory event, complainant was employed

as a Distribution Clerk at the Mid Hudson, Processing and Distribution

Center, in Newburgh, New York. Believing that he was the victim of

discrimination, complainant sought EEO counseling and, thereafter, filed

formal EEO complaint 1 (Agency No. 1A-126-1045-94) on June 22, 1994, and

formal EEO complaint 2 (Agency No. 1A-126-1057-94) on August 10, 1994.

In complaint 1, complainant alleged discrimination on the basis of age

(59), when: (1) he was not given the opportunity to work overtime on

Thursdays, his regular day off, since December 1993; and (2) he was

followed around, berated, yelled at in front of coworkers, constantly

given direct orders and threatened with discipline. In complaint 2,

complainant further alleged discrimination on the bases of age (59 ) and

reprisal (prior EEO activity), when he was: (1) treated disrespectfully

by management; (2) given a direct order; (3) denied overtime to see

his EEO representative; and (4) given a Letter of Warning on June 27,

1994, which was later reduced to a discussion. The agency accepted the

complaints for investigation and complied with all of our procedural and

regulatory prerequisites. Subsequently, complainant requested a hearing

before an EEOC Administrative Judge (AJ). Upon the agency's motion for

findings and conclusions without a hearing and permitting an appropriate

opportunity for response, the AJ issued a Recommended Decision (RD)

finding no discrimination in both complaints. See 64 Fed. Reg 37,644,

37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614); 29 C.F.R. � 1614.109(e). Thereafter, the agency adopted the RD and

issued a FAD, dated February 13, 1997, finding no discrimination. It is

from this agency decision that complainant now appeals. No contentions

were submitted on appeal.

With respect to complaint 1, the investigative record reveals that all

employees that were similarly situated to complainant were over the

age of forty. Additionally, complainant received significantly more

overtime than his comparison employees. The record further reveals that

complainant was admonished by his supervisors for practicing unsanitary

behavior. Complainant was recovering aluminum cans from the trash for

recycling and then touching the machines in the cafeteria before washing

his hands. He presented no evidence that anyone else behaved in such

a manner and subsequently was treated more favorably.

Regarding the claims in complaint 2, complainant was initially denied

time to see an EEO counselor because he had already been afforded time

for counseling. Moreover, when the supervisor realized that complainant

was seeking counseling for a new claim, complainant was given time to

pursue his claim. The letter of warning issued to complainant was because

he had previously been told not to go through the trash receptacles

to remove aluminum cans and he continued to disregard that directive.

In general, complainant presented no evidence of discriminatory animus.

In his RD, the AJ concluded that complainant failed to establish a prima

facie case of discrimination in both complaints. In both instances,

the AJ reasoned that complainant failed to show that he was treated less

favorably than similarly situated comparative employees and that he failed

to show a discriminatory or retaliatory motive for the agency's actions.

The AJ further reasoned that complainant failed to show that he was

aggrieved.<2>

After a review of the record in its entirety, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the agency's final

decision, because the Administrative Judge's issuance of a decision

without a hearing was appropriate and a preponderance of the record

evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

July 24, 2000

__________________

Date

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.

2While the AJ concluded that the complainant was not aggrieved, we note

that, assuming arguendo, complainant were to prevail in this matter, he

might be entitled to compensatory relief for emotional harm. See Jackson

v. United States Postal Service, EEOC Appeal No. 01923399 (November 12,

1992), request to reopen denied, EEOC Request No. 05930306 (February 1,

1993).