Edward Pasco, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, N.E./N.Y. Metro Region, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01a02928 (E.E.O.C. Aug. 28, 2000)

01a02928

08-28-2000

Edward Pasco, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, N.E./N.Y. Metro Region, Agency.


Edward Pasco v. United States Postal Service

01A02928

08-28-00

.

Edward Pasco,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

N.E./N.Y. Metro Region,

Agency.

Appeal No. 01A02928

Agency No. 4B020014298

Hearing No. 160-99-8371x

DECISION

INTRODUCTION

Edward Pasco (complainant) initiated a timely appeal on March 11, 2000,

with the Equal Employment Opportunity Commission (the Commission) from

a final agency decision (FAD) concerning his complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency correctly determined that

complainant was not discriminated against on the basis of age (DOB:

5/28/55) when he was terminated during his probationary period as an

associate supervisor.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a probationary associate supervisor, EAS-15, at the agency.

On May 16, 1998, complainant was selected to participate in the agency's

Associate Supervisor Program (ASP), subject to the successful completion

of a two week orientation program. Following the completion of the

program, complainant would no longer be on probationary status, and would

receive permanent employment with the agency in a supervisory position.

In order to satisfy the training program requirements, each participant

was required to attain a total score of five points out of an eight

point total on two weekly examinations. Complainant achieved a total

score of four points after receiving a two on each exam administered

at the completion of Week 1 and Week 2. After failing to meet the

requisite program criteria, the agency notified complainant that he

would be separated, effective June 17, 1998.

Believing he was a victim of discrimination, complaint sought EEO

counseling and subsequently filed a complaint on September 1, 1998.

In his complaint, he alleged discrimination on the basis of age (DOB:

5/28/55) when: on June 17, 1998, he was removed during his probationary

period from the Associate Supervisor Training Program, EAS-15, for

failing to meet the requirements of the position.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). The agency, however, petitioned for

a decision without a hearing. The AJ ruled on the agency's motion and

rendered a decision without a hearing. In his February 8, 2000 decision,

the AJ found no discrimination and concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions. Specifically, the

AJ found that the complainant failed to meet the requisite five points on

the Week 1 and Week 2 examinations and found that complainant presented

no persuasive evidence that his age was a factor in his termination.

The agency subsequently adopted the AJ's decision in its FAD, dated

February 11, 2000, and implemented a decision finding no discrimination.

CONTENTIONS ON APPEAL

On appeal, complainant makes a number of contentions that will be

addressed below. The agency submits no response to these contentions.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a claim brought under the

Age Discrimination in Employment Act is patterned after the three-step

process set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

In order for complainant to prevail, he must first establish a prima facie

case of discrimination by presenting facts that reasonably give rise to

an inference of discrimination. McDonnel Douglas, 411 U.S. at 802.

Complainant can establish a prima facie case of discrimination on

the basis of age with regard to his termination where he has produced

sufficient evidence to show that : (1) he was a member of a protected

group; and (2) he was meeting the legitimate expectations of his

employer and was discharged without cause, or that he was singled out

for termination while similarly situated employees not in his protected

group were treated more favorably. Flowers v. Crouch-Walker Corp., 552

F.2d. 1277, 1282-83 (7th Cir. 1977). If the complainant establishes a

prima facie case, then the burden shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its challenged action.

The complainant must then prove that the legitimate reason articulated by

the agency was not its true reason, but was a pretext for discrimination.

Complainant retains the ultimate burden of persuasion, and it is his

obligation to show by a preponderance of the evidence that the agency

acted on a discriminatory basis. St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993)(citing U.S. Postal Service Board of Govenors

v. Aikens, 460 U.S. 711, 176 (1983); Texas Department of Community

Affairs v. Burdine, 430 U.S. 248 (1981)).

The preponderance of the evidence indicates that complainant has failed

to satisfy his burden of establishing that he was terminated because of

his age. We find that complainant failed to demonstrate that similarly

situated employees not in his protected class were treated differently

under similar circumstances when complainant was separated from the

ASP. Specifically, complainant has not shown that others outside his

protected class but with similar scores were not removed. Complainant

offers no evidence that younger employees who received failing scores

were not terminated and allowed to complete the program. The Commission

notes that eight of the 16 external appointments invited to continue with

the ASP are members of complainant's protected class, or candidates over

the age of 40.<2> Furthermore, out of the 58 total applicants, two of

the four candidates who failed to successfully complete the orientation

program were younger

than 40. Thus, complainant fails to proffer any evidence which gives

rise to an inference of age discrimination.<3>

Moreover, we conclude that even assuming that complainant established a

prima facie case of age discrimination, the agency articulated legitimate,

nondiscriminatory reasons for its actions. The Commission finds that

complainant failed to meet the requirements of the position, since he

scored only four points and fell short of reaching the requisite five

point criteria on the Week 1 and Week 2 examinations.

On appeal, complainant contends that he was not given a fair opportunity

to complete the agency's Associate Supervisory Program. Once accepted

into the program, he claims that none of the agency's correspondence

set forth a mandatory requirement to achieve a cumulative score on

examinations as a condition to proceed with the training program.

He refutes the agency in stating that applicants were not informed of

the test prerequisite during any stage of the recruitment process, but

only at the commencement of orientation. Thus, complainant disputes the

program criteria, by claiming that there were no written requirements to

inform applicants that a minimum score of five was necessary to maintain

employment status with the agency. Complainant also challenges the

relevance of the subject material tested and the objectivity in evaluating

test scores. Since he was never given the opportunity to review his

test results or given an agency evaluation of his test deficiencies,

complainant avers that he was wrongfully discriminated against due to

his age.

The Commission, however, finds that all applicants, regardless of

age, were subjected to standard test criteria in order to successfully

complete the training program. The record reflects that out of the 16

external applicants who passed the two exams and were asked to continue

with the program, five were actually older than complainant. We also

note that three of the four applicants removed from the program total

of 58 applicants were younger than the 43 year old complainant. Thus,

the agency did not discriminate against certain applicants according to

age when administering the examination.

CONCLUSION

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were motivated

by discriminatory animus toward complainant's age. We discern no basis

to disturb the AJ's decision. Accordingly, the agency's finding of no

discrimination in the removal of complainant for the position in question

is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

08-28-00

Date

_______________

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.

2 The pool of applicants for the ASP included both internal candidates

already employed by the agency and external candidates not previously

employed by the agency. Only the internal candidates who failed to meet

the program criteria were given their prior positions within the agency.

The external candidates who failed to satisfactorily complete the program,

such as complainant, were terminated from the agency.

3 We note that this is only one method of establishing a prima facie

case of age discrimination, and that a complainant is not precluded

from such a showing merely because there are no comparative employees.

The qualifying test, however, was administered to all applicants in the

ASP, regardless of age. Thus, we find no other evidence that would give

rise to even an inference of age discrimination. O'Connor v. Consolidated

Coin Caterers Corp., 517 U.S. 308 (1996); see also Enforcement Guidance

on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002

(September 18, 1996).