Booker P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionJan 6, 20160120142871 (E.E.O.C. Jan. 6, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Booker P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142871 Agency No. 4B-110-0025-14 DECISION Complainant filed an appeal from the Agency’s July 16, 2014 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Probationary City Carrier Assistant (PCCA) at the Post Office in Flushing Meadows, New York. On February 19, 2014, he filed an EEO complaint in which he alleged that the Customer Services Manager (CSM) discriminated against him on the bases of race (African-American) and color (Light-Skinned) by terminating him on November 18, 2013, approximately one month into his probationary period. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant opted to receive a final decision from the Agency without a hearing, and in accordance with his request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In that decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120142871 2 A PS-Form 50, the Agency’s standard document for notification of personnel actions, indicates that Complainant was terminated from his PCCA position, effective November 18, 2013, for failure to maintain regular attendance and meet the performance requirements of his position. IR 102. In a letter to Complainant dated the same day, the CMS stated that Complainant had been missing scans, failing to deliver mail, failing to remain regular in attendance, and not maintaining satisfactory performance. IR 61, 65, 103-04. According to the CMS, Complainant had taken between two and four times as much time to deliver mail as had been allotted and had shown no improvement. The CMS’s assessment had been corroborated by contemporaneously prepared delivery analysis reports, as well as affidavit testimony from two of the CMS’s subordinate supervisors. IR 61-63, 84-85, 94, 105-09, 114-16, When asked by the investigator why he believed that his race and skin color were motivating factors in the CMS’s decision to fire him, Complainant responded that because the CMS was Asian, he had no chance of making it through his probationary period. IR 48. He admitted in his affidavit, however, that he had no information on any employees outside of his protected groups whose performance was similar to his who had not been terminated. IR 47. The CMS averred that he had separated nine PCCA of different races, including two Caucasians, two Asians, three Hispanics, and two African-Americans. IR 61, 66-72, 117-126. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving the hiring and firing of personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would have to prove, by a preponderance of the evidence, that the MCS was motivated by unlawful considerations of his race and light skin color when he terminated Complainant on November 18, 2013. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can prove the existence of an unlawful motivation by showing that the MCS’s articulated reasons for the actions at issue are pretextual. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext may include discriminatory statements or past personal treatment attributable to the MCS, comparative or statistical data showing differences in treatment across racial or skin color lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). Complainant’s claim of race and color discrimination appears to rest on the notion that the acts complained of in and of themselves are sufficient to establish motive. This is simply not true. The statutes the Commission enforces cannot protect employees from the consequences of their poor performance on the job. And in this case, the MCS’s affidavit testimony regarding 0120142871 3 Complainant’s unsatisfactory performance during his probationary period has been thoroughly documented and corroborated. Complainant did not provide evidence of any of the indicators of pretext described above beyond his own assertions. He has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by the MCS for firing Complainant or which call the MCS’s veracity into question. We therefore agree with the Agency that Complainant failed to establish the existence of an unlawful motive on the part of the MCS in connection with his being terminated during probation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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). 0120142871 4 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 6, 2016 Date Copy with citationCopy as parenthetical citation