01974236
03-29-2000
Jesus Aure, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jesus Aure v. United States Postal Service
01974236
March 29, 2000
Jesus Aure, )
Complainant, )
)
v. ) Appeal No. 01974236
) Agency No. 1F-944-1024-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The appeal is accepted by
the Commission in accordance with the provisions of 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).<1>
ISSUE PRESENTED
The issue presented is whether complainant has established that the agency
discriminated against him on the bases of sex (male), national origin
(Filipino), and age (59) when he was removed from employment during his
probationary period.
BACKGROUND
In a complaint dated August 16, 1996, complainant, then a former Part-Time
Flexible Mailhandler, PS-04, alleged that the agency discriminated against
him as delineated in the above-entitled statement "Issue Presented."<2>
The agency conducted an investigation, provided complainant with a
copy of the investigative report, and advised complainant of his right
to request either a hearing before an EEOC administrative judge (AJ)
or an immediate final agency decision (FAD). A hearing request was not
received within the 30-day period allotted for response.<3> On April 1,
1997, the agency issued a FAD finding no discrimination. It is from
this decision that complainant now appeals.
ANALYSIS AND FINDINGS
At the outset, the Commission notes complainant's contention on appeal
that he was improperly denied a hearing. The record reflects that by
letter dated December 10, 1996, the agency conveyed to complainant a
copy of the investigative report in this case. The agency's letter set
forth the complainant's rights and obligations with regard to requesting
a hearing before an EEOC administrative judge, including to whom such
requests were to be addressed, and noted that a hearing request must be
submitted within 30 days of the date on which that letter was received.
Although the agency has not provided evidence of the date on which
complainant received the letter, complainant avers on appeal that he
received the letter on or about December 15, 1996, while his attorney
(retained in April 1997) states that complainant received the letter
on or about December 23, 1996. By undated letters received by the
appropriate agency offices on February 7 and February 10, 1997,<4>
respectively, complainant requested first a hearing, then an immediate
FAD without mentioning his hearing request. The Commission finds,
however, that complainant was properly informed that he could request
either a hearing or an immediate FAD, and the time limit for doing so.
The Commission further finds that, using either date of receipt proffered
by complainant on appeal, his hearing request was submitted after the
expiration of the 30-day period for such requests, which ended no later
than January 22, 1997. Accordingly, the Commission concludes that
complainant's request for a hearing was untimely, and that complainant
was not improperly denied a hearing.
Turning now to the merits of complainant's claim, in any proceeding,
either administrative or judicial, involving an allegation of
discrimination, it is the burden of the complainant, to initially
establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur.
The record reflects that at least four employees who were not members
of complainant's protected groups of national origin or sex or both were
retained at the end of their probationary periods. Accordingly, a prima
facie case of national origin and sex discrimination is established.
The agency did not provide information regarding the ages of these
comparative employees. The Commission therefore will assume for the sake
of argument that a prima facie case of age discrimination is established.
The burden now shifts to the agency to articulate a legitimate,
non-discriminatory explanation for its action. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, the
agency need only produce evidence sufficient "to allow the trier of
fact rationally to conclude" that the agency's action was not based on
unlawful discrimination. Id. at 257.
The agency explained that complainant was removed during his probationary
period because his work did not meet expectations. The agency stated
that complainant was informed of what was expected of him, and received
periodic evaluations of his work. The agency stated that complainant
was removed based on the quantity of his work, in that he failed to make
productive use of his time, "wandering off" after the completion of a task
unless his supervisor told him where to go next; the quality of his work,
in that he failed to meet training expectations in a number of areas, and
had to constantly be told which mail to process first; his dependability,
in that he required constant supervision, and was several times observed
to extend his breaks; his work relations, in that he did not listen to
orders well and often was not responsive to directions; his work methods,
in that he did not follow oral instructions and had to physically be shown
what to do; and his personal conduct, in that he did not demonstrate
a positive attitude to all work assignments, lacked responsiveness,
and demonstrated an unwillingness to perform to all desired standards.
This explanation is sufficient to meet the agency's burden.
Once the agency has proffered a legitimate, non-discriminatory explanation
for its actions, 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). Although the burden of production, in other words, "going
forward," may shift, the burden of persuasion, by a preponderance of
the evidence, remains at all times on the complainant. Burdine, 450
U.S. at 256.
Complaint argues that pretext is shown because the agency failed to
properly advise him of the expectations of his position, or that he
was not meeting those expectations. The record, however, contains
documentation showing that complainant, like the comparative employees,
was so advised but did not adequately improve his performance to be
retained. Complainant further argues that pretext is shown because he
successfully passed the probationary period for the same position in 1988,
during a previous period of employment with the agency. However, the
fact that complainant passed the probationary period for the Mailhandler
position eight years earlier is of little probative value, give that
there is no evidence that the expectations of the position were the same
in 1988 as they were in 1996. Accordingly, the Commission finds that
pretext is not established.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
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).
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:
March 29, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________________ ________________________
Equal Employment Assistant Date
1On 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.
2Complainant alleged discrimination based on his race, which he described
as Filipino. "Filipino," however, denotes a national origin rather
than a race, and the "Issue Presented" has been stated accordingly.
The manner in which complainant's claim is analyzed is not affected by
this distinction.
3This matter is discussed further in the text, infra.
4The former letter was postmarked February 6, 1997; the postmark on the
latter is illegible.