Joelv.Polk, Jr. II Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01a03162 (E.E.O.C. Aug. 2, 2000)

01a03162

08-02-2000

Joel V. Polk, Jr. II Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Joel V. Polk, Jr. II v. United States Postal Service

01A03162

August 2, 2000

Joel V. Polk, Jr. II )

Complainant, )

) Appeal No. 01A03162

v. ) Agency No. 4-G-770-0252-99

) Hearing No. 330-A0-8047X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The complainant timely initiated an appeal from the agency's final action

concerning his equal employment opportunity (EEO) complaint of unlawful

discrimination on the bases of sex (male) and age (43), 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 complainant alleged that he

was discriminated against when he was terminated from his Letter Carrier

position after his probationary period for unsatisfactory work performance

and being involved in a preventable automobile accident . Pursuant to 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405),

the Commission accepts the complainant's appeal from the agency's final

action dated February 25, 2000, in the above-entitled matter.<1>

An EEOC Administrative Judge (AJ), without a hearing, found that

the agency had articulated legitimate non-discriminatory reasons for

terminating the complainant during his probationary period. The AJ

further found, inter alia, that the complainant failed to show that

other individuals had been treated differently than he in similar

circumstances. Moreover, the AJ found no evidence that the agency

terminated the complainant because of his sex or age. Accordingly, the

AJ found that the agency did not discriminate against the complainant.

The agency issued a final action implementing the AJ's decision.

On appeal, the complainant restates his arguments made below and alleges

the AJ erred in her factual findings. Specifically, the complainant

argues that the AJ erred in finding that he was terminated during his

probationary period. The agency made no comments in response to the

appeal.

The record reveals that the complainant was appointed to a Letter Carrier

position effective November 7, 1998, with a 90-day probationary period.

We note that a 90-day probationary period therefore would end on February

5, 1999. We further note that the record shows that the effective date of

the complainant's termination was February 6, 1999. In the AJ's decision,

she stated that it appeared that the complainant was terminated on the

last day of his probationary period. We agree with the complainant that

this statement appears to be in error. However, we conclude that while

the probationary period appears to have ended prior to his removal, we do

not find that this error affected the finding that the complainant failed

to prove that the removal was for discriminatory reasons. See Hines

v. Department of the Navy, EEOC Request No. 05960667 (March 26, 1998),

fn. 1. ("harmless error" is an error "whose existence has no impact on

the outcome of the case").

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final action

dated February 25, 2000, because the AJ's issuance of a decision without

a hearing was appropriate and a preponderance of the record evidence

does not establish that discrimination occurred.

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:

August 2, 2000

Date Carlton M. Hadden, Director

Office of Federal Operations

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.