0120092885_0120090507
09-30-2009
Clinton E. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Clinton E. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 0120092885 & 0120090507
Agency Nos. 1K231008607 & 1K231006408
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity
Commission (EEOC or Commission) accepts complainant's timely appeals from
the agency's May 9, 2008 and October 6, 2008, final agency decisions
(FADs) concerning his equal employment opportunity (EEO) complaints
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.
In his first complaint, agency number 1K231008607, complainant alleged
that the agency discriminated against him based on his race (black)
and sex (male) when he was terminated during his probationary period
in September 2007 for poor work performance. In his second complaint,
agency number 1K231006408, complainant alleged that he was discriminated
against based on his race and reprisal for prior EEO activity when the
agency delayed writing his termination during probation letter until
May 8, 2008, and delayed mailing it to him until July 10, 2008.
Following an investigation of the first complaint, the agency
notified complainant of the right to request a hearing before an EEOC
Administrative Judge, and he requested a decision without a hearing.
The agency issued a FAD finding no discrimination, which complainant
appealed. The appeal was docketed as EEOC Appeal No. 0120092885.
Thereafter, complainant filed his second complaint. The second FAD
dismissed the complaint on the grounds that complainant failed to
timely initiate EEO counseling. It reasoned that complainant sought EEO
counseling on May 23, 2008, beyond the 45 calendar day time limit to do
so since he was terminated during his probationary period in September
2007.1
Complainant formerly worked for the agency as a part-time regular
mail processing clerk. His closing probationary evaluation rated
him unsatisfactory in the performance factors of dependability and
work relations. Examples of dependability are taking responsibility
for completing his own work and reporting to work on time. An example
of work relations is cooperating well with co-workers, supervisors,
and others. He was rated satisfactory on all other performance factors,
including work quality and work quantity.
To prevail in his disparate treatment claim in the first complaint,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating
that he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant's former supervisor (Native American and black female), who
made the decision to remove complainant, explained that he performed his
duties at an irregular pace and did not keep up with his workload, and
that she told him in on-the-spot discussions that he was slow processing
mail and returning from breaks.2 The Manager of Distribution Operations
(MDO) (black African-American male), who concurred in the removal,
explained that complainant was not processing mail to the maximum capacity
of the machine, took long breaks, took a long time to set up his machine,
and after he clocked in he did not report to his assignment. According
to the MDO, the supervisor informed him that one time she instructed
complainant to take his lunch so he would be available for dispatch,
and complainant reacted by approaching her, getting near her face, and
saying "you can't make me do this." The MDO stated the supervisor said
complainant would disappear from his assignment and return late from
his break.
Complainant tried to establish in a variety of ways that the agency's
explanation for his removal was pretext to mask discrimination.
He contended that he came to work on time, his attendance was good,
and he completed his work assignments. He contended that he was not
told while he was employed that he took too long for breaks and lunch.
Complainant averred that when he asked why he was rated unsatisfactory
in work relations, the supervisor replied complainant went to the union
to complain about a change of schedule, that this caused confusion and
it could have been handled better. According to the counselor's report,
the supervisor countered that she did not retaliate against complainant
for seeking union representation, rather, the union just improperly
walked to the operation and stopped complainant from working for over 15
minutes to converse without utilizing an authorized absence from workroom
floor form. Complainant contended that the deciding and concurring
officials gave internally and externally inconsistent reasons for his
removal, undermining their credibility. For example, complainant stated
that after receiving his closing evaluation, he met with his supervisor
and she indicated that all the part-time regulars were being terminated
because the position was not working out. The supervisor countered she
said some of the part-time regulars were being let go. Complainant also
noted he was rated satisfactory on quantity of work. Complainant also
contended that he was disparately treated from a white female co-worker.
On appeal from the FAD on his first complaint, complainant reiterates
arguments he made below. On appeal from the FAD on his second complaint,
complainant argues that he timely sought EEO counseling regarding
the agency's delayed issuance and mailing of his termination letter.
In opposition to the appeals, the agency argues that the FADs should
be affirmed.
While complainant timely initiated EEO counseling regarding the
agency's delayed issuance and mailing of his termination letter, we
find the second complaint must be dismissed. The second complaint,
despite being characterized as above, actually regards complainant's
termination during his probationary period. While the notice letter was
delayed, complainant knew he was previously terminated in September 2007.
The second complaint is dismissed for stating the same claim as the
first complaint. 29 C.F.R. � 1614.107(a)(1). We now turn to the first
complaint.
Complainant has not established that the agency's reasons for terminating
him during his probationary period were pretext to mask sex, race
or reprisal discrimination. He contends that he performed well
during the probationary period, and he was not informed otherwise by
his supervisor. This account is contradicted by his supervisor and
the MDO, and complainant has not met his burden of showing that the
supervisor's stated assessment of his performance was a pretext to
mask discrimination. Further, even if complainant established that his
seeking union representation played a role in his removal, this would
not show discrimination based on sex or race. Regarding the claim of
inconsistent statements, we find that complainant has not established
some occurred, and others are not significant. For example, even if the
supervisor attempted to sugar coat things by telling complainant some
or all the part-time regulars were being let go because the position was
not working out, this does not persuasively undermine her explanation for
removing complainant, which was consistent with her closing evaluation.
Also, while complainant was rated satisfactory on quantity of work, this
does not undermine the supervisor's stated assessment that he was not
dependable at times with his work pace and extended breaks. Finally,
complainant failed to establish he was disparately treated.
Complaint 1K231006408 is dismissed. The FAD on complaint 1K231008607
is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
September 30, 2009
__________________
Date
1 Complainant was terminated effective September 9, 2007.
2 The termination letter, which was issued by the supervisor after
this explanation, stated complainant was terminated because of overall
unsatisfactory performance. It explained that complainant initially
demonstrated satisfactory performance, but during the last 30 days it
deteriorated drastically, i.e., numerous occasions where he returned
late from breaks, excessive talking which caused him to be away from his
assigned position on the machine, and on more than one occasion failing
to meet expected workload volume.
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0120092885
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092885 & 0120090507