01972766
09-20-1999
Louis J. Fazekas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Area) Agency.
Louis J. Fazekas, )
Appellant, )
) Appeal No. 01972766
v. ) Agency No. 1A-111-1142-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Area) )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race/color (Caucasian/white), national origin (Hungarian),
sex (male), reprisal (prior EEO activity), age (D.O.B: 7/28/39), 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. Appellant alleged that
he was discriminated against when he was not detailed to the position
of Manager of Distribution Operations (MDO). The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, appellant requested a FAD.
The record reveals that during the relevant time, appellant was employed
as a Supervisor of Transportation Operations, at the agency's Queens
General Mail Facility, Processing and Distribution, Flushing, New York.
The FAD concluded that appellant failed to establish prima facie cases
of race/color, sex, national origin, reprisal and age discrimination.
With respect to race/color, sex and national origin, appellant did
not show that he was similarly situated to the employees who received
temporary and weekend details to the acting MDO positions. Regarding
reprisal, appellant failed to establish that the agency knew of his
prior EEO activity. Also, appellant did not show that a causal link
existed between the prior EEO activity and him not receiving a detail.
Furthermore, appellant did not provide any evidence that age was a
determinative factor in the agency's decisions regarding details to
the positions.
After a careful review of the record, based on McDonnell Douglas 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 finds
that assuming appellant established a prima facie case of race/color,
sex, national origin, reprisal and age discrimination, appellant failed
to establish that the agency's legitimate, non-discriminatory reasons
for its actions were pretextual. In reaching this conclusion, we note
that supervisors from Distribution Operations (DO) were utilized to cover
the acting MDO details, not supervisors from Transportation Operations
(TO) such as appellant, because the details were located in DO, not TO.
Furthermore, DO and TO were separate and distinct functions. Therefore,
it was easier to assign DO supervisors to the detail rather than crossing
back and forth between functions.
Furthermore, the Commission finds that since the agency did not
discriminate against appellant he is not entitled to his request for
compensatory damages.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/20/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations