0120073661
10-15-2009
Garie Altidor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Garie Altidor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120073661
Hearing No. 510-2006-00059X
Agency No. 4H-330-0025-06
DECISION
On August 8, 2007, complainant filed an appeal from the agency's July
25, 2007 final order 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether substantial evidence supports that AJ's finding that there is no
direct evidence that complainant was subjected to discrimination on the
basis of national origin when he was terminated during his probationary
period.
BACKGROUND
The record reveals that on July 23, 2005, the agency hired complainant
as a letter carrier at the agency's Hollywood and Flamingo, Florida
facilities. Complainant was subject to a ninety-day probationary
period in which he received evaluations from his supervisors. During
their probationary period, employees are evaluated as "outstanding,"
"satisfactory," or "unsatisfactory" in the factors of work quantity,
work quality, dependability, work relations, work methods, and personal
conduct.
On November 28, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of national origin (Haitian)
and race/color (Black) when, on October 17, 2005, complainant's supervisor
altered complainant's September 21, 2005 evaluation indicating that his
work performance was unsatisfactory, gave him an unsatisfactory rating
on his final two evaluations, and terminated him during his probationary
period.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ held a hearing on July 7, 2006.
At the hearing, complainant withdrew his claim that he was subjected
to discrimination on the bases of race and color and asserted that he
would only pursue the remaining national origin discrimination claim as a
direct evidence case. Hearing Transcript (HT), pp. 13, 242, 254, 255.
At the hearing, complainant testified that on October 17, 2005,
his supervisor changed his September 21, 2005 60-day evaluation by
retroactively lowering the evaluation from satisfactory in five elements
and unsatisfactory in one element to satisfactory in three elements
and unsatisfactory in three elements. Complainant testified that the
supervisor made the changes in his presence, but he did not question
him because he learned in training that he should not ask questions.
Complainant further testified that also on October 17, 2005, his
supervisor completed his 80-day evaluation that was backdated October 11,
2005, and a final evaluation dated October 17, 2005. The record reveals
that the supervisor rated complainant unsatisfactory in four elements
and satisfactory in two elements on both the 80-day evaluation and the
final evaluation dated October 17, 2005.
Additionally, complainant testified that after his supervisor gave him the
final evaluation, the supervisor informed complainant of his termination
and stated, "You don't speak English. You can't work at the Post Office."
HT, p. 20. Complainant further testified that the supervisor inquired
about his national origin almost every week. Complainant also testified
that the supervisor told him that it is not easy to learn a foreign
language, but the supervisor never said anything "unkind" about Haiti.
HT, p. 41.
Complainant's supervisor testified that he changed the 60-day evaluation
before he presented the evaluation to complainant and did not change the
evaluation in complainant's presence. The supervisor testified that he
changed the evaluation because he realized that he had made a mistake
on complainant's evaluation.
The supervisor further testified that the Acting Manager of the Hollywood
Post Office directed him to terminate complainant because complainant
misdelivered mail, including a package from the Franklin Mint worth
thousands of dollars. The supervisor stated that he learned that
complainant misdelivered the packages on October 17, 2005. The supervisor
also testified that complainant took too much time to deliver mail and
failed to deliver all of the mail on his route. The supervisor stated
that he met with complainant on a daily basis to give him assignments
and feedback on his performance. The supervisor denied stating that
complainant would be terminated because he did not speak English or
inquiring about complainant's national origin.
The Acting Manager testified that complainant was terminated because he
failed to improve his performance after being given several opportunities
to do so. The Manager stated that complainant was transferred from the
Flamingo facility to the Hollywood facility to give him an opportunity to
improve his performance, but complainant's performance did not improve.
The Acting Manager testified that he discussed complainant's performance
with complainant's supervisor and decided that complainant should be
terminated because he misdelivered precious coins to the wrong address.
In a decision dated June 18, 2007, the AJ determined that complainant
was not subjected to national origin discrimination. The AJ found that
although complainant's supervisor asked him once where he was from and
commented that it must be difficult to speak a foreign language, these
statements do not constitute direct evidence of discrimination because
they do not reflect discriminatory motive or bias. The AJ further
found that complainant's claim that his supervisor stated that he was
terminating complainant because of his inability to speak English well was
"suspect." The AJ stated that she did not believe complainant's testimony
that he was not allowed to ask any questions during training because such
a prohibition would undermine the agency's purpose in teaching new hires,
and management testified that employees are encouraged to ask questions
during training. The AJ further determined that complainant initially
testified that he was not bothered by his supervisor's questions about
his national origin, but later contradicted himself by saying that these
inquiries made him sad. Additionally, the AJ found that complainant's
claim that his supervisor told him many times that he would successfully
complete his probationary period before October 2005, was "questionable"
because complainant was transferred from the Flamingo facility because
of his poor performance.
Finally, the AJ determined that complainant's misdelivery of 15
Franklin Mint packages and his practice of returning to the facility with
undelivered mail constituted legitimate reasons to terminate complainant.
The AJ concluded that because she found that complainant's supervisor
did not state that he must terminate complainant because of his inability
to speak and understand English well, complainant failed to present any
credible direct evidence to support his national origin discrimination
claim.
The agency subsequently issued a final order fully adopting the AJ's
findings. Neither party made any arguments on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In this case, complainant asserted that his complaint should only
be analyzed under a direct evidence theory of discrimination. HT,
pp. 255, 275. Direct evidence of discriminatory motive may be any
written or verbal policy or statement made by an agency official that
on its face demonstrates a bias against a protected group and is linked
to the complained of adverse action. See Revised Enforcement Guidance on
Recent Developments in Disparate Treatment Theory, III(A) (July 14, 1992)
(Revised Enforcement Guidance). The United States Supreme Court has held
that where the complainant presents direct evidence of discrimination,
use of the McDonnell Douglas test is inappropriate. See Trans World Air
Lines, Inc. v. Thurston, 469 U.S. Ill, 121 (1985). Unless the agency can
impeach the evidence or can establish an affirmative defense, liability
will be established. Revised Enforcement Guidance, at III(B)(1).
Upon review of this matter, we find no basis to disturb the AJ's
findings. As determined by the AJ, asking complainant about his national
origin and stating that it is difficult to learn a foreign language does
not constitute direct evidence of discrimination because these comments
were not made in relation to complainant's termination or evaluations.
Moreover, such statements do not necessarily reflect a bias or animus
against complainant based upon his national origin.
With respect to complainant's claim that his former supervisor said that
he must terminate complainant because he could not speak or understand
English well, the AJ determined that these purported comments were not
made because complainant gave contradictory or non-credible testimony
regarding what he was taught during training, his feelings about being
asked about his national origin, and his supervisor's representations
about complainant's ability to successfully complete his probationary
period. We note that complainant's claim that his supervisor stated that
he must terminate complainant because he cannot speak English well is not
corroborated by other witnesses, and complainant failed to present any
evidence that indicates that the supervisor harbored animus against him
because of his national origin. Thus, we find that the AJ's credibility
determinations are supported by substantial evidence in the record.
Although complainant only pursued this matter as a case with direct
evidence of discrimination, we also determine that the agency provided
legitimate, non-discriminatory explanations for its actions under a
disparate treatment analysis.1 Specifically, complainant's supervisor
stated that he changed complainant's September 21, 2005 evaluation to
include lower ratings on two factors because he made a mistake when
he initially rated complainant. The supervisor further stated that
complainant was terminated and received unsatisfactory ratings on his
October 11 and 17, 2005 evaluations because he misdelivered packages
worth thousands of dollars from the Franklin Mint; misdelivered other
mail items; failed to deliver all of the mail on his route; and failed
to improve his performance after being given several opportunities.
Complainant acknowledged that sometimes he did not deliver all of the
mail on his route, but contends that this was attributable to other
employees who improperly cased mail to him that did not belong to
his route. Complainant testified, however, that he never informed
management that this was the reason why he failed to deliver some of
the mail assigned to him. We further note that complainant acknowledged
that he misdelivered the Franklin Mint packages and that his October 2005
evaluations and termination corresponded with his supervisor learning that
he misdelivered these items. Consequently, we conclude that complainant
failed to prove that the agency's legitimate, non-discriminatory reasons
for its actions were pretext for unlawful discrimination.2
CONCLUSION
After a careful examination of the record, we conclude that the AJ's
findings of fact are supported by substantial evidence and that she
correctly applied the appropriate regulations, policies and laws.
Accordingly, the Commission affirms the agency's final order finding
no discrimination.
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
____10/15/09______________
Date
1 A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
2 We further note that it is well established that agencies have greater
discretion to remove an employee during their probationary period than
they do in removing a career employee. See Pittman v. USPS, EEOC Appeal
No. 01840334 (April 4, 1986).
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0120073661
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120073661