0120080180
09-30-2009
John S. Cecconi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John S. Cecconi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080180
Agency No. 4C-176-0038-04
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 12, 2007, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1 Complainant
alleged that the agency discriminated against him on the basis of age
(61) when on July 9, 2004, he learned that he had been given a merit
rating of Unacceptable for Fiscal Year (FY) 2003.
Complainant, a Supervisor, Customer Service, at the Wilkes-Barre,
facility, indicated that he discovered he had received a rating of
Unacceptable when he failed to receive a merit increase.2 He then learned
that other supervisors in the same position had received Met Expectations
ratings as well as merit increases. It is noted that Complainant went
out on sick leave on May 17, 2003, never returned to work, and retired
on December 31, 2004.
Following an investigation by the agency, complainant, requested a final
agency decision (FAD). The agency's FAD found that complainant failed to
show that he was subjected to discrimination on the basis of his age.
Nevertheless, the agency indicated that even if it assumed, arguendo,
that complainant established a prima facie case of age discrimination,
the agency had articulated a legitimate nondiscriminatory reason for its
action; namely, that complainant received a rating of Unacceptable because
of his leave record and his work performance. Specifically, management
stated that there was difficulty assessing complainant's performance
because of his extended absence from the workplace. Management further
indicated that, with regard to complainant's work performance there were
concerns about his use of the mandatory changes required by the Delivery
Programs Office, such as using automated recording systems to track
workload and timekeeping for his subordinates. Management maintained
that, because complainant would not use the computer to input information,
another management person was needed to input the data, which caused
double work loads for the management team. Finally, the agency found
that complainant's comparators were not similarly situated to him,
because one was within his age range and the other, while 32 years old,
was not similarly situated because she worked for the entire fiscal year,
compared to complainant's eight months, and had no problems with her
work performance. Therefore, the agency found that complainant failed
to show that the agency's legitimate nondiscriminatory reason was pretext
for discrimination.
On appeal, complainant alleges that, throughout the entire record,
there is no mention of the fact that he was treated differently than
the other managers. While he admits that the male coworker was within
his protected age group, he argues that the female coworker was similarly
situated to him and was treated more favorably. He contends the agency is
being less than truthful when it maintains that he had a poor work record.
He explains that, had that been so, it would have been documented and the
agency would have been able to show his deficiencies. He maintains that
the agency's conclusory statements should be given no weight. Further, he
states that he had no problem using the computer and no other supervisor
was ever required to input any information into the computer for him.
Complainant states that his immediate supervisor had no problem with
his work performance and maintains that during the eight months that he
worked, he did a good job. Complainant maintains that he has been an
exemplary employee for 35 years and a supervisor for over 20 years and
has never had a complaint. Complainant contends that he earned the merit
increase and that the agency violated agency policy throughout this case.
To prevail in a disparate treatment claim such as this, 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, 143 (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).
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 decision.
The Commission agrees that complainant did not demonstrate that he was
discriminated against on the basis of age. Assuming, arguendo, that
complainant has established a prima facie case of discrimination based on
age, we find the agency has articulated a legitimate nondiscriminatory
reason for its action; namely, concerns regarding complainant's work
performance during the eight months of the fiscal year that he was
present in the workplace, and difficulty in fully assessing complainant's
performance on account of his extended absence.
To show pretext, on appeal, complainant contends that he earned the
merit increase based on the time that he was at the agency, and that
agency policy required that he be evaluated and that he be involved in
his evaluation if he worked over 60 days in the review period. Further,
complainant maintained that the agency's argument regarding his work
performance was purely conclusory. Nonetheless, the Commission finds
that there is no evidence in the record which suggests that complainant's
age was considered with respect to this decision or that discriminatory
animus regarding age was involved. Therefore, we find that complainant
has not shown that the agency's reason for its action was pretext for
age discrimination. Accordingly, the preponderance of the evidence of
record does not establish that discrimination occurred.
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 Originally, the agency dismissed complainant's case for untimely EEO
Counselor contact. Complainant appealed the decision to the Commission.
The Commission reversed the agency's decision and remanded it for
further processing. Cecconi v. United States Postal Service, EEOC Appeal
No. 0120053968 (April 3, 2007).
2 Complainant maintains that he was given a mid-year evaluation of Good
and that his supervisor was satisfied with his work.
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0120080180
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080180