He won $5,000.00 in an EEOC claim of 43 incidences

Terrance M. Vraniak,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200609061

Hearing No. 380-2004-00089X

Agency No. 4E-995-0051-02

DECISION

Complainant filed an appeal from the agency’s October 6, 2005 final order

concerning his equal employment opportunity (EEO) complaint alleging

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. and

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e

et seq.  For the following reasons, the Commission AFFIRMS the agency’s

final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Postal Systems Coordinator (PSC) at the agency’s General Mail

Facility in Fairbanks, Alaska.  On October 8, 2002, complainant filed

an EEO complaint alleging that he was discriminated against on the bases

of age (54)2 and in reprisal for prior protected EEO activity when:

1. From January 1, 2002 to 2003, complainant was subjected to

harassment when management interfered with his duties and subjected him

to heightened scrutiny;

2. Complainant was denied higher level details and assignments in

2002 and 2003; and

3. In May 2003, complainant was not selected for three internal

control positions.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ).  Complainant timely

requested a hearing and the AJ held a hearing on July 12 and 13, 2005.

The AJ issued a decision on August 26, 2005.

In his decision, the AJ found that the agency discriminated against

complainant when it ordered him to travel from Fairbanks to Anchorage on

short notice for possible discipline in July 2003.  The AJ found that

complainant failed to show that he was subjected to age or reprisal

discrimination with respect to any other claim including claim (3)

pertaining to several non-selections.  The AJ noted that the agency did,

however, violate EEOC Regulation 29 CFR Section 1602.14 when it failed

to preserve the interview notes pertaining to the 2003 selection process

at issue.   Nevertheless, the AJ credited the testimony of the officials

conducting the interview with complainant regarding complainant’s

performance.  Accordingly, the AJ found the agency articulated legitimate,

non-discriminatory reasons for not selecting complainant for any of the

subject positions.

The AJ ordered the agency to provide complainant with the following

relief:

A. The agency shall pay complainant all costs to which he may

be entitled under federal law in connection with this complaint. 28

USC Section 1920; 29 CFR Section 1614.501.  This involves copying and

travel costs.  The agency shall pay complainant’s reasonable attorney’s

fees. Complainant’s attorney shall submit a certified statement as

described in Section 1614.501(e) within 30 days of receipt of this

decision or earlier.  The agency may reply within 30 days of its

receipt.

B. The agency shall take no retaliatory action against complainant

for having filed and prosecuted this discrimination complaint.

C. The agency shall pay compensatory damages as follows: $5,000.00

for non-pecuniary, compensatory damages.

D. The agency shall ensure that in the future complainant and all

other employees in the Alaska District finance section are not subjected

to the same, similar or any  acts of reprisal discrimination. The agency

shall ensure that all interview records are retained as required by

regulation.

E. The agency shall conduct EEO training for managers, supervisors

and employees within the Alaska District finance section to ensure

that they become aware and continue to be aware of their obligations,

responsibilities and rights under EEO law, including the rights to work

in an environment free from reprisal discrimination and to use the EEO

system to remedy perceived violations of EEO laws.

F. The agency shall post at all facilities within the authority

of the Alaska District copy of a notice sufficient under Commission

standards advising employees of this finding of discrimination. The

notice should be signed by a duly authorized agency representative and

should be posted immediately upon the agency’s issuance of the agency’s

final order. The notice should be maintained for a period of at least 90

days in conspicuous places where the agency customarily posts  notices

that it expects its employees and applicants for employment to see. The

agency should take all reasonable steps to ensure that the notices are

not altered, defaced or covered by any other material. The notices should

advise employees and applicants of their rights to be free of employment

discrimination and their EEO remedies.

The agency subsequently issued a final order on October 5, 2005,

adopting the AJ’s finding of discrimination with respect to the incident

of harassment involving complainant’s compulsory travel to Anchorage and

the AJ’s findings that no discrimination occurred with respect to any

other claim or basis alleged.  The agency’s final order fully implemented

the AJ’s decision and order for relief.

On November 10, 2005, complainant submitted a Motion for Attorney

Fee Award, together with a verified petition for attorney’s fees to

the agency3 requesting attorney’s fees and costs in the total amount

of $68,962.87. On December 5, 2005, the AJ issued his Decision Re:

Attorney’s Fees, in which the AJ found that complainant failed to

submit any claim for attorney’s fees within 30 days of complainant’s

acknowledged receipt of the AJ’s decision.  The AJ therefore awarded

no attorney’s fees.  Thereafter, on December 21, 2005, the AJ notified

complainant that although the AJ had received complainant’s subsequent

motion for an extension of time in which to file a motion for attorney’s

fees, the AJ no longer retained any jurisdiction over the complaint

and accordingly, complainant would have to forward his motion to the

Commission for consideration on appeal.

On appeal, complainant challenges the AJ’s finding regarding complainant’s

non-selection for the internal control positions (claim (3)) on the

grounds that complainant was entitled to an adverse inference given the

agency’s destruction of the interview notes.  Complainant argues that

the selecting officials claimed that complainant was not selected based

on his interview, but that the AJ erred in failing to conclude that

the interview notes and scores, had they been produced, would show as

complainant contends, that he scored higher than the selected candidates.

Complainant requests that the Commission reverse the agency’s final

decision with respect to claim (3) and find that complainant was subjected

to discrimination as alleged.

Complainant further requests that the Commission grant an extension of

time in which to submit his motion for attorney’s fees.  Complainant

argues that he believed his claim for attorney’s fees was due 30 days

after he received the agency’s final decision, not 30 days from his

receipt of the AJ’s decision.  Complainant argues that EEOC Regulation

29 C.F.R. §1614.501(e) is ambiguous, his delay was not lengthy, and that

granting an extension would not prejudice the agency.  Complainant argues

that the present circumstances warrant an extension of time as a matter

of equitable tolling.

On appeal, the agency states that the AJ properly used his discretion

with respect to his decision not to draw an adverse inference based upon

the missing documents pertaining to the interview process in claim (3).

The agency urges the Commission to defer to the AJ’s judgment regarding

the proceedings at the time of the hearing and find that the agency’s

reasons for not selecting complainant for the internal control positions

successfully rebutted the prima facie case presented by complainant.

On appeal, the agency also argues that no extension for the submission of

complainant’s claim for attorney’s fees should be granted on the grounds

that the agency would be substantially prejudiced.  Specifically, the

agency states that its decision to fully implement the AJ’s decision,

including the finding of discrimination, was premised in part on

the failure of complainant to submit his claim in a timely manner.

The agency argues that when complainant failed to submit any claim,

the agency considered its liability limited and that any further appeal

was unnecessary.  Furthermore, the agency argues that the AJ’s order was

clear in setting out the time limits for filing the fee petition and that

complainant has not set forth adequate reasons for missing the deadline.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”  Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted).  A finding regarding whether or not discriminatory

intent existed is a factual finding.  See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).  An AJ’s conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination.  Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978).  Proof of a prima facie case will

vary depending on the facts of the particular case.  McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions.  Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).  To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency’s explanation is pretextual.  Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Complainant can establish a prima facie case of reprisal by presenting

facts that, if unexplained, reasonably give rise to an inference

of discrimination.  Shapiro v. Social Security Admin., EEOC Request

No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)).  Specifically, in a reprisal claim, and in

accordance with the burdens set forth in McDonnell Douglas, Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324

(D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department

of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a

complainant may establish a prima facie case of reprisal by showing that:

(1) he or she engaged in a protected activity; (2) the agency was aware

of the protected activity; (3) subsequently, he or she was subjected

to adverse treatment by the agency; and (4) a nexus exists between the

protected activity and the adverse treatment.  Whitmire v. Department

of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).

In the instant case, neither party appeals the AJ’s finding of retaliation

with respect to when in July 2003, complainant was threatened with

discipline and was ordered to travel to Anchorage on short notice

(from claim (1)).  Neither party has challenged the AJ’s finding that

no discrimination occurred regarding claim (2) (denied higher level

details).  Neither party has challenged the remedy apart from the denial

of attorney’s fees.  We therefore confine our decision to consideration

of the AJ’s finding that complainant was not subjected to discrimination

in connection with the agency’s selection process described in claim

(3) and to the AJ’s order denying any extension of time for submission

of complainant’s claim for attorney’s fees.

Non-selection

With respect to complainant’s non-selections, the AJ found that through

the witnesses presented, it was clear that the agency’s reasons for not

selecting complainant were because other candidates were better qualified,

complainant interviewed poorly, and because complainant had a history of

conflict with higher management.  The AJ credited the testimony of each

official with respect to a comment complainant made at the beginning of

the second day’s interview, when he was aware that he was not selected

for the Manager’s position.  Both officials testified that complainant

sarcastically remarked that if he was not qualified for the position

the day before, he was probably not qualified for the position that

day either.   The AJ found complainant’s denial of this remark to lack

credibility and that complainant’s own history of conflicting conduct with

the agency, coupled with his remark, resulted in his non-selections.

We find that substantial evidence supports the AJ’s finding that no

discrimination occurred as alleged in connection with the agency’s

selection for the positions.  We also see no error in the lack of an

adverse inference taken by the AJ against the agency regarding the missing

interview notes.  The AJ clearly recognized that the agency should have

preserved the notes, but the AJ found that other evidence presented at

the hearing was sufficient to show that complainant was not selected

for non-discriminatory reasons.

Attorney’s fees

In the instant matter, neither party denies receipt of the AJ’s decision

wherein complainant was ordered to submit his petition for attorney’s fees

within 30 days of the date of receipt of the AJ’s decision.  Complainant

states that his failure to submit his petition in a timely manner was the

result of his own mistake.  The AJ’s decision and instructions regarding

attorney’s fees was clear and complainant does not argue that he submitted

the petition within the AJ’s time limit. The Commission finds no reason

to equitably toll the deadline or otherwise extend the deadline for

submitting the attorney’s fee petition.  See 29 C.F.R. §1614.604(c).

Therefore, no attorney’s fees or costs are awardable.

CONCLUSION

We AFFIRM the agency’s final decision in which the agency fully

implemented the AJ’s finding of discrimination with respect to reprisal

(claim (1)), no discrimination with respect to the remaining claims

(claims (2) and (3)), and no discrimination with respect to any claim

on the basis of age.  We deny complainant’s request regarding attorney’s

fees.  We REMAND the matter to the agency for the purpose of implementing

the relief ordered by the AJ as slightly modified herein.

ORDER

The agency shall take the following remedial actions to the extent that

it has not already done so:

A. Within 30 days of the date this decision becomes final the agency

shall pay compensatory damages as follows: $5,000.00 for non-pecuniary,

compensatory damages.

B. The agency shall ensure that in the future complainant and all

other employees in the Alaska District finance section are not subjected

to the same, similar or any acts of reprisal. The Agency shall ensure

that all interview records are retained by the agency as required by

regulation.

C. Within 180 days of the date this decision becomes final, the

agency shall conduct EEO training for managers, supervisors and employees

within the Alaska District finance section to ensure that they become

aware and continue to be aware of their obligations, responsibilities

and rights under EEO law, including the rights to work in an environment

free from reprisal discrimination and to use the EEO system to remedy

perceived violations of EEO laws.

D. Within 180 days of the date this decision becomes final, the

agency shall consider taking appropriate disciplinary action against

the responsible management officials still employed by the agency. The

agency shall report its decision to the compliance officer.  If the agency

decides to take disciplinary action it shall identify the action taken.

If the agency decides not to take disciplinary action, it shall set

forth the reason(s) for its decision not to impose discipline. If any

of the responsible management officials have left the agency, then the

agency shall furnish documentation of their departure date(s).

The agency is further directed to submit a report of compliance, as

provided in the statement entitled “Implementation of the Commission’s

Decision.”

POSTING ORDER (G0900)

The agency is ordered to post at its Alaska District facilities copies

of the attached notice.  Copies of the notice, after being signed by the

agency’s duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted.  The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled “Implementation of the

Commission’s Decision,” within ten (10) calendar days of the expiration

of the posting period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)

Compliance with the Commission’s corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C.  20036.  The agency’s report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant.  If the agency does not comply with the Commission’s

order, the complainant may petition the Commission for enforcement

of the order.  29 C.F.R. § 1614.503(a).  The complainant also has the

right to file a civil action to enforce compliance with the Commission’s

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

“Right to File A Civil Action.”  29 C.F.R. §§ 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999).  If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated.  See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS – ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint.  However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision.  In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission.  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.  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, Director

Office of Federal Operations

November 26, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 Complainant filed a complaint and two amendments detailing some

43 incidents which, prior to the time set for hearing, the EEOC

Administrative Judge limited by date and summarized into the three claims

described herein. Complainant added age as a basis of discrimination

for claim (3) only.

3 The certificate of mailing that accompanies complainant’s motion for

attorney’s fees does not contain a legible address or addressee.

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2

0120060906

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C.  20036