0120063127
10-16-2007
Terry L. Loisel, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Terry L. Loisel,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01200631271
Agency No. WBR-05-027
Hearing No. 100-2005-00334X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 29, 2006 final decision 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. The appeal is
subject to our de novo review under 29 C.F.R. � 1614.405(a). Complainant
alleged that the agency discriminated against him on the basis of age
(D.O.B. 08/30/44) when he did not receive a year-end Bonneville Power
Award at the end of calendar year 2004.
Complainant originally made a timely request for a hearing before
an EEOC Administrative Judge (AJ) at the Seattle District Office.
However, complainant failed to appear at the pre-hearing conference on
January 5, 2006. The AJ noted in her Order Dismissing Case for Failure
to Prosecute that complainant had not contacted the AJ ahead of the
scheduled meeting to inform her that he would not be present. On the
very day of complainant's non-appearance, the AJ issued an Order to Show
Cause Why Complaint Should Not Be Dismissed for Failure to Prosecute.
The Order instructed complainant to respond within 15 days or the case
would be dismissed. The following day, on January 6, 2006, the Seattle
District Office mailed to complainant a Notice of Transfer indicating that
the processing of the case was being transferred to the San Francisco
District Office and that he should address any further communications
to the Hearings Unit of that office. Both the Order and the Notice were
mailed to complainant's address of record, yet despite the correspondence,
neither the San Francisco nor the Seattle District Offices received word
from complainant. Consequently, the AJ assigned to the case dismissed
the hearing request for Failure to Prosecute and remanded the matter to
the agency for a decision on the merits.
In its final agency decision, the agency determined that there was no
evidence that complainant had been discriminated against as alleged.
Specifically, the agency found that complainant had not established
a prima facie case of discrimination. The agency found evidence
indicating that temporary employees, such as complainant, were not
entitled to the award. Moreover, the individuals who complainant named
as comparators and who had received the award despite being temporary
employees, were not actually temporary employees at all, but rather were
"term appointment" employees and thus in a different category than
complainant and eligible for the award. The agency found that even
if complainant had established a prima facie case of discrimination,
he did not rebut management's stated explanation with proof that the
explanation was pretextual and discriminatory.
In his appeal, complainant states that he missed the pre-hearing
conference due to a family emergency which caused him to leave the state.
He explains that prior to leaving, he called the Seattle District Office
and the agency's representative to inform them that he would not be
present at the meeting. He states that he did not actually speak to
anyone, but rather left voicemail messages at both offices. He argues
that given these circumstances it was wrong of the AJ to dismiss the
case, and that he should be entitled to a hearing where he can prove
his claim.
We are not persuaded by these arguments. Assuming that complainant did
leave messages with the Seattle District Office and the agency's attorney,
we find that his actions were insufficient. Moreover, complainant
says nothing about the Order to Show Cause or the Notice of Transfer,
although we assume that complainant received both correspondences as he
has not indicated a change in mailing address. Given the importance
of this matter and the fact that it is complainant who is interposing
this claim, he bears the responsibility to ensure that the appropriate
persons receive all communications pertaining to the case. Although we
sympathize with complainant and his family emergency, we do not find that
he followed through with his responsibilities in pursuing this case.
As such, we find no error in the AJ's dismissal of the hearing request
and remand to the agency.
Turning to the merits of the case, we also find no error in the agency's
conclusions. The record shows that non-temporary employees who were "on
the rolls" at the time the award was issued were entitled to the bonus.
The record also shows that although complainant was on the rolls at the
time of the award, he was a temporary employee. See Exhibits 8, 9, 10.
As such, he was not entitled to the award. Furthermore, the comparators
complainant offers to prove his claim do not support his case as these
employees were not temporary employees as complainant argues, but rather
they were term appointment employees. They, unlike complainant, were
entitled to the award.2 On appeal complainant has made no arguments
or introduced any evidence to counter this point.3 Therefore, we find
that he has failed to disprove the agency's proffered non-discriminatory
reason for not awarding him the bonus.
Therefore, having reviewed the record and considered the arguments on
appeal, we find no error in the agency's final decision. Complainant has
failed to prove his claim. As such, we affirm the agency's decision.
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 (S0900)
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, Director
Office of Federal Operations
October 16, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We note that for comparative evidence to support complainant's prima
facie case, the evidence must show that management afforded treated
an employee outside of complainant's protected group differently under
similar circumstances. See Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). All relevant aspects of complainant's employment must be nearly
identical to those of the comparative employee. See O'Neal v. U.S.P.S.,
EEOC Request No. 05910490 (July 23, 1991).
3 We further note that six recipients of the award were over the age
of 40, while seven were under the age of 40. Although these numbers are
not dispositive of anything, they certainly detract from the inference
that complainant was denied the award because of his age. In addition,
the ADEA requires that complainant show that age was a determinative
factor in the sense that "but for" his age, he would not have been
subject to the action at issue. Krodel v. Young, 747 F.2d 701, 706
(D.C. Cir. 1984); LaMontage v. Am. Convenience Prods., Inc., 750 F.2d
1405, 1409 (7th Cir. 1984). Complainant has not satisfied this burden.
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0120063127
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063127