01993951
11-09-1999
Carlos A. Fernandez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carlos A. Fernandez, )
Complainant, )
) Appeal No. 01993951
v. ) Agency No. 4-H-330-0509-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of race (Caucasian), color (white), national origin ( Hispanic,
Cuban), sex (male) and in reprisal for protected EEO activity, in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges he was discriminated
against when he was terminated. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the Commission
affirms the FAD.
ISSUE
The issue is whether the complainant presented a prima facie case of
discrimination and/or retaliation.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Casual Letter Carrier at the agency's Coconut Grove
facility. Complainant's Station Manager (SM: Black, Haitian, female)
issued complainant a notice of termination on July 15, 1997. Believing he
was a victim of discrimination, complainant sought EEO counseling, and
subsequently, filed a complaint on October 15, 1997. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD concluded that complainant was not discriminated against and was
not retaliated against when he was terminated. The FAD indicates that
complainant failed to establish a prima facie case of discrimination
because he presented no evidence that similarly situated individuals,
not in his protected classes, were treated differently under similar
circumstances. On appeal, complainant argues that the agency fabricated
reasons to justify his termination. The agency requests that we affirm
its FAD.
Three prominent determinations preceded complainant's termination. First,
the agency determined, as indicated by the notice of termination itself,
that the complainant's work performance was unsatisfactory. Second,
the FAD discloses that complainant was dismissed for giving conflicting
statements in a mishandled mail investigation and the resultant loss
of trust. Finally, as revealed through SM's affidavit, the complainant
was dismissed for causing an automobile accident.
Unsatisfactory Work Performance
The agency's investigation revealed three performance evaluations
occurring on May 21, 1997, June 20, 1997 and on July 15, 1997.
The evaluations were identical, finding the complainant's performance
unacceptable in the areas of personal conduct, work quantity, work
quality, work relations, and work methods, but finding him satisfactory
in the area of dependability. Complainant argues that he was never
properly trained and that his performance was not the real reason for
his termination. Complainant also claims that SM unjustifiably completed
his final 30 day evaluation on July 15, 1997, prior to its scheduled
due date, in order to support complainant's termination. The record
indicates that the complainant's evaluation was completed on the same
date as his notice of termination.
Conflicting Statements
As another possible basis for termination, the agency investigated
statements made by the complainant during a pre-disciplinary
investigation. The facts are in dispute, but the record is clear that
SM initiated a pre-disciplinary investigation. The investigation
was designed to identify those responsible for a particular piece
of mishandled mail. Complainant was interviewed as part of the
investigation. During his interview, the complainant allegedly indicated
that he was not responsible for the mishandled mail. SM found that a Part
Time Flexible Carrier (PTFC: Anglo, Caucasian, female) was responsible
for the mishandled mail. As a result of this determination, PTFC was
issued a 7 day suspension.
PTFC obtained representation and contested her suspension. PTFC's
representative discussed the mishandled mail with the complainant.
After discussing the mishandled mail with the representative, complaint
executed a written statement wherein he accepted responsibility for the
mishandled mail. Once confronted with complainant's written statement,
SM withdrew PTFC's suspension.
Feeling misled, SM again questioned complainant about the mishandled mail.
Complainant said that he never intended to accept responsibility
for the mishandled mail. Complainant stated that he simply did not
want anyone to get blamed for something that he could have done.
On appeal, complainant argues that he never intentionally caused mail
to be mishandled or delayed. He argues that his responsibility for the
mishandled mail has never been investigated and therefore, should not
form the basis of his termination.
Automobile Accident
The agency investigation further revealed that the complainant caused an
automobile accident. On May 24, 1997, complainant's assigned delivery
van hit the rear bumper of another vehicle. Complaint notes on appeal,
that his �at-fault� accident occurred on May 24, 1997 and his termination
did not take place until July 16, 1997. Complainant argues that his
termination for unsatisfactory work performance is not related to causing
the automobile accident.
In response to all of the agency's proffered reasons for terminating
him, complainant argues that the proffered reasons are pretextual.
Complainant argues that a similarly situated employee was treated
differently. Complaint named PTFC as a comparison employee. According to
complainant, when PTFC was charged for mishandled mail, she was given
a 7 day suspension, whereas once complainant was suspected of mishandled
mail he was terminated.
ANALYSIS AND FINDINGS
Complainant has the initial burden of establishing a prima facie case of
discrimination or retaliation. A prima facie case of discrimination based
on race, national origin, color, or age is established where complainant
has produced sufficient evidence to show that: (1) he is a member of a
protected class; (2) he was subjected to an adverse employment action; and
(3) similarly situated employees outside his protected class were treated
more favorably in like circumstances. Potter v. Goodwill Industries of
Cleveland, 518 F.2d 864, 865 (6th Cir. 1975). A prima facie case of
retaliation is established where complainant has produced sufficient
evidence to show that: (1) he engaged in protected activity; (2) the
agency was aware of his participation in the protected activity; (3)
he was subjected to an adverse employment action; and (4) a nexus exists
between the protected activity and the agency's adverse action. Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318,
324 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976); Van Druff
v. Department of Defense, EEOC Appeal No. 01962398 (February 1, 1999).
If the complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
nondiscriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
If the agency articulates a reason for its actions, the burden of
production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination or retaliation. Throughout, complainant retains the burden
of proof to establish discrimination or retaliation by a preponderance
of the evidence. It is not sufficient "to disbelieve the employer; the
fact finder must believe the plaintiff's explanation of intentional
discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993) (emphasis in original).
In applying the facts of the instant case to determine whether the
complainant made a prima facie case of discrimination or retaliation,
we find that the complainant is a member of a protected class and that
he was subjected to an adverse employment action. However, complainant
fails to identify any similarly situated employees outside his protected
class that were treated more favorably in like circumstances. Complainant
offers PTFC as a comparison employee. The comparison employee is not
similarly situated in that, PTFC did not cause an automobile accident
with her assigned postal vehicle and his performance evaluations are
better than the complainant's performance evaluations.
But, even without a qualifying comparison, we must consider whether an
inference of discrimination can otherwise be drawn from the evidence.
Jatoi v. Hurst-Euless-Bedfore Hosp. Auth., 807 F.2d 1214, 1219 (5th
Cir. 1987); Byrd v. Roadway Express, 687 F.2d 85, 86 (5th Cir. 1982).
After reviewing the record, we find no persuasive evidence, that is
sufficient to convince us, that complainant's race, color, national
origin, or sex, motivated his termination. Accordingly, complainant has
failed to establish a prima facie case of race, color, national origin,
or sex discrimination.
Complainant also fails to establish a prima facie case of retaliation
because the record does not indicate that he has engaged in prior EEO
activity nor was the SM aware of any such EEO activity.
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 FAD.
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:
____________________________
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 of mailing. I certify that
the 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.