0120091676
06-09-2010
Keith N. Collins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Keith N. Collins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120091676
Hearing No. 451-2008-00219X
Agency No. 4G-780-0073-08
DECISION
On March 10, 2009, complainant filed an appeal from the agency's February
20, 2009 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 in the record supports the finding that
complainant was not subjected to age or race-based discrimination
regarding two termination actions.
BACKGROUND
On April 1, 2008, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (African-American) and age
(57) when:
1. on December 8, 2007, he was terminated from his Transitional
Employee position at the Frank Tejeda Post Office, Texas, for failure
to meet expectations as a letter carrier; and
2. on January 5, 2008, he was terminated as a casual clerk from
the South Texas Medical Center (STMC) Post Office.
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 January 29, 2009 and
issued a bench decision the same day, January 29, 2009.
AJ Decision
The AJ found, as to the first termination action, that complainant did
not identify comparators who were similarly-situated, and outside of his
protected groups, who were treated more favorably. While recognizing
that complainant may have received inadequate training, the AJ noted that
the agency made a decision to terminate complainant early in the process
before having to send him to additional training and incur the additional
expense of said training. The AJ noted that this was a valid exercise
of management's discretionary authority. The AJ found no persuasive
evidence of pretext.
The AJ then noted that after the first termination, complainant exercised
initiative to find a new job, which unfortunately, led to the second
termination action. As to this action, the AJ found that the agency
articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, the manager, who was responsible for the operation of that
post office, made a determination based on her personal observation
and reports from other employees and supervisors that complainant
was not performing up to her expectations. The AJ noted that she had
discretionary authority, because complainant was a casual clerk employee,
to terminate him. The AJ concluded that there was no evidence of pretext
presented. The AJ found no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that he is qualified for the job and that
his work performance was improving. He maintains that he was mistreated.
The agency asks the Commission to affirm the final order.
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming complainant could establish a prima facie case of discrimination
on the alleged bases, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to issue (1),
management stated that complainant was terminated due to the fact that
he was not performing up to the expectations set for him by management.
Management further indicated that after two weeks of carrying the same
route, complainant showed no signs of improvement in his performance.
We find that there is substantial evidence in the record to support the
AJ's conclusion that complainant was not subjected to age or race-based
discrimination when he was terminated in December 2007.
As to issue (2), management stated that the circumstances leading to
complainant's termination were his inability to retain information
regarding his daily clerk duties and assignments. His manager stated,
for example, that complainant did not remember the dispatch schedules,
the collection times or the scanning procedures of the collection points,
and he struggled with the proper and timely sorting of the FSM No Linear
Mail (NLM) for the carriers. Again, we find that there is substantial
evidence in the record to support the AJ's conclusion that complainant was
not subjected to age or race-based discrimination when he was terminated
in January 2008.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
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
____06/09/10______________
Date
1 Complainant's contention on appeal that his performance was improving
does not refute management's reasons for his terminations nor does it
indicate that his race or age played a role.
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0120091676
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091676