01976058
02-09-2000
Patrick T. Hannon, Complainant, William J. Henderson, Postmaster General, United States Postal Service, (Headquarters) Agency.
Patrick T. Hannon v. United States Postal Service
01976058
February 9, 2000
Patrick T. Hannon, )
Complainant, )
) Appeal No. 01976058
) Agency No. HO-0171-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Headquarters) )
Agency. )
)
DECISION
Complainant, Patrick T. Hannon, filed a timely appeal of a final
agency decision (FAD) regarding his complaint of unlawful employment
discrimination on the bases of reprisal (prior EEO activity), and age
( DOB: 5/27/42), 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.
ISSUE PRESENTED
The issue presented is whether the agency discriminated against
complainant when it failed to appoint him to a programmer position at
the Wilkes-Barre facility after his position was relocated to Minneapolis.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Computer Systems Specialist DCS-18, at the agency's Wilkes-Barre
Information Systems Service Center facility. Complainant alleged that
the agency issued a notice to him on April 13, 1995, indicating he was
being "involuntarily reassigned" to the Minneapolis Information Service
Center as of August 5, 1995. He further alleged that there were six
vacancies at the Wilkes-Barre facility for DCS-18 computer programmers
for which he qualified. Instead of appointing him, the agency filled
the positions with contract programmers whose average age was 30.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on June 30, 1995.
The agency dismissed the complaint for failure to state a claim which
led to an appeal to this office. We reversed and remanded the complaint
for further investigation. At the conclusion of the investigation,
complainant requested that the agency issue a final agency decision.
The agency concluded in its final decision that complainant failed to
establish a prima facie case of age discrimination and reprisal because
he failed to show that similarly situated individuals not in his protected
classes were treated differently under similar circumstances. The agency
contended that the comparative employees cited by complainant were
Computer Systems Liaison Specialist, DCS-21, whose "working conditions"
were not identical to a DCS-18. The agency stated further that
complainant was not qualified for the computer programmer position
and that he repeatedly admitted to his lack of qualifications for
that position. Finally, the agency asserted that complainant failed
to demonstrate the responsible managment official was aware of his EEO
activity and, as such, there was no connection between his protected
activity and the action of which he complains.
On this second appeal, complainant did not submit additional arguments.
The agency requests that we affirm its final decision adding that
complainant failed to even apply for the position which he claims he
was denied.
ANALYSIS AND FINDINGS
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); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), 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 age discrimination because he failed to show he
applied for the positions which were advertised at the time he was due
to be relocated to Minneapolis.
In addition, complainant failed to establish that he was qualified
for the position of computer programmer. The exhibits he attached to
his affidavit contain the requisite qualifications for the position
as well as a record of his own educational background. The position
called for programming experience in several computer languages and
operating systems, experience in analysis, design, coding and testing.
Complainant stated he had experience in using one of the specified
computer languages, but he failed to address, even minimally, that he
met the other qualifications to be a computer programmer.
On the issue of reprisal, complainant must show that he engaged in
protected EEO activity, that management was aware that he had engaged
in such activity, that he suffered an adverse employment action and
that there was a causal connection between the adverse action and his
protected EEO activity. Hochstadt at 324. We note from our review of
the record that the agency failed to collect information regarding the
EEO activity of other employees in complainant's particular work group.
The agency relied largely on the statement of one manager that he was
not aware of complainant's EEO activity in reaching the conclusion that
complainant was not subjected to reprisal. In addition, the agency's
analysis of this issue failed to consider the impact of another manager's
statement that he was aware of complainant's protected activity.
Nevertheless, we are unable to conclude from the evidence in the record
that complainant established by a preponderance of the evidence that the
agency failed to appoint him to a computer programmer position because
he had filed EEO complaints. Rather the evidence demonstrates he was
reassigned to the Minneapolis station along with all but two of the
other employees in the Wilkes-Barre Information Systems Service Center.
Consequently, complainant was treated much the same as his co-workers.
The two exceptions to the relocation were employees who obtained their
new positions through the union grievance process. From the record
before us we cannot conclude that their circumstances were in any way
relevant to complainant's claims and complainant does not assert them
to be. Moreover, complainant's inability to overcome the conclusion
that he was not qualified for the position that he sought essentially
refutes his contention that he was the subject of reprisal.
CONCLUSION
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 agency's
final decision.
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:
2/9/00
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
1 On 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.