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).