0120092594
09-08-2009
Kingsley O. Uzukwu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kingsley O. Uzukwu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092594
Agency No. 4C-440-0027-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's August 13, 2008 final decision 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.
During the period at issue, complainant was employed as a Part-Time Flexible (PTF) City Carrier, Q-01, at the agency's Newburg Station in Cleveland, Ohio.
On February 19, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (African-American), national origin (Nigerian) and sex (male) when:
from September 2007 through November 19, 2007, he was not trained properly and subsequently on November 19, 2007, he was terminated from the Postal Service.
The record reflects that complainant was initially terminated during his 90-day probationary period. The record further reflects that following complainant's termination, the agency and the union came to an agreement to retrain complainant and evaluate only the delivery portion in order to try to help him get to the ninety-day probationary period. The record reflects that complainant's performance did not improve and he was ultimately terminated for his inability to perform the total job responsibilities of a letter carrier.
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On May 13, 2009, the agency issued the instant final decision.
In its May 13, 2009 final decision, the agency concluded that complainant failed to prove that he was subjected to discrimination as alleged. The agency determined that complainant did not establish a prima facie case of race, national origin and reprisal discrimination. The agency further found that assuming, for the sake of argument, complainant established a prima facie case of race, national origin and reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
Complainant's supervisor (S1) stated that she was the deciding official to terminate complainant based on his inability to perform the total job responsibilities of a letter carrier. S1 stated that complainant received the same amount of training as other PTF employees concerning carrying mail. Specifically, S1 stated that complainant "was given more training than any other new employee. He was terminated twice when asked for another opportunity we allowed him 2 more weeks before we terminated him the second time. Most employees do not ge[t] a second chance to improve the[i]r performance once they are terminated."
S1 stated that complainant was given a map, along with a form 3996 and MSP scan points on a daily basis. S1 acknowledged that complainant was never evaluated or trained in casing in the office or other inside work. Specifically, S1 stated that complainant "was not evaluated on office performance only street, actually he should have been evaluated on both just as all the other employee's were. He was so behind in the delivery part of his training that we were unable to train him in the office. So I agreed with the union to just evaluate him in the street in order to try to help him make his 90 days however he was not efficient at delivering mail." Furthermore, S1 stated that complainant's race, national origin and sex were not factors in her determination to terminate him from agency employment.
The Customer Service Manager (M1) stated that complainant was terminated from agency employment for "failure to complete his assignments timely." M1 stated that during the relevant time, complainant was evaluated by S1. M1 further stated that if it was determined that an employee was unable to meet the core duties and responsibilities of the job, the supervisor would determine the appropriate action; and that if termination is deemed necessary, she would make the final decision. M1 stated that complainant was evaluated using a PS Form 1750 and was given weekly evaluations. M1 stated that complainant "was terminated twice. The Union request that we give him another opportunity for retraining before we terminated him, and management honored the[i]r request." M1 stated that complainant "had a very good attitude is able to accept constructive criticism however he was unable to meet the qualifications of a letter carrier." Moreover, M1 stated that she did not discriminate against complainant based on his race, national origin and sex.
On appeal, complainant restates his version of the facts, including that he was not trained properly and not given an opportunity to case and carry his mail like other employees.
A claim of disparate treatment is examined under the three-party 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 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
We find that complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because 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 8, 2009
__________________
Date
2
0120092594
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092594
6
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