0120073131
06-10-2009
Lamont C. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Lamont C. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120073131
Hearing No. 471-2006-00033X
Agency No. 1J481013905
DECISION
On June 27, 2007, complainant filed an appeal from the agency's May
23, 2007 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 accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Part Time Flexible Carrier at the agency's Old Redfield Post Office,
in Detroit, Michigan. On November 15, 2005, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of sex
(male) and age (47) when, on or about August 17, 2005, he was issued a
notice of termination during his probationary period.
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, which was held August 3, 4 and 10, 2006. Thereafter,
on May 7, 2007, the AJ issued a decision finding 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.
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).
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).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 141 (citing Hazen
Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [complainant's]
age must have actually played a role in the employer's decision making
process and had a determinative influence on the outcome." Id.
Following the hearing, the AJ issued the following findings: Complainant
was employed as a Part Time Flexible Carrier on May 28, 2005, at the
agency's Old Redford Branch office. As a new employee, complainant had to
successfully complete a probationary period for 90 days. His probationary
period was scheduled to end on August 25, 2005.
Complainant received his evaluation after 30 days. He was rated
unsatisfactory on "Work Quantity" and "Work Quality" from one supervisor
(S1). Complainant was instructed that he must "increase speed to
keep up with daily duties as a city carrier. Field time is extended
on regular basis. [Complainant n]eeds improvement." Complainant was
rated satisfactory in the areas of "Dependability," "Work Relations,"
"Work Methods," and "Personal Conflicts." Complainant received his
second evaluation approximately 60 days after he began his employment.
He received an unsatisfactory rating in the areas of "Work Quantity,"
"Work Quality," and "Dependability" from another supervisor (S2). It was
noted that complainant was "unable to case mail efficiently and [was]
unable to return on time." It was recommended that he not be retained.
On August 17, 2005, complainant was notified that he would be terminated
effective immediately.
The AJ concluded that assuming, arguendo, that complainant
established a prima facie case of discrimination, the agency offered
non-discriminatory, legitimate reasons for terminating complainant's
employment. Specifically, the AJ noted that S1 credibly testified that
complainant had problems completing his tasks in a timely manner and
often returned from the field late. S1 stated that complainant seemed
"puzzled." S1 observed that complainant's time did not improve despite
being warned about this in his 30-day evaluation. The AJ also noted that
the Manager of Customer Service (MCS) also observed that complainant was
having problems with failure to complete his tasks in a timely manner. 1
MCS agreed with the termination because complainant did not improve even
after retraining.
In addition, the AJ noted that an acting supervisor (AS) who supervised
complainant at times observed that complainant had difficulty in
casing mail proficiently and timely completing his field assignments.
AS testified that complainant did not improve and also observed that
complainant made two improper U-turns and improperly backed up his
vehicle. One of the trainers (T1) trained and retrained complainant
but he did not show improvement. According to T1, complainant was
confused in casing mail, he continued to combine the mail improperly,
his speed did not improve, he was backtracking, and he did not listen
to and follow instructions.
The AJ also noted that S2 credibly testified that complainant was
unable to case mail efficiently and leave the office on time. S2 also
testified that complainant was unable to complete his route timely and
would backtrack. S2 stated that he gave him his 60-day evaluation and
notified him of the performance problems. Yet, complainant did not
improve even after retraining. According to S2, complainant was late
returning from the field every day. Thus, when the end of complainant's
probationary period was approaching, S2 terminated him.
The AJ noted that complainant attempted to establish pretext by pointing
out mistakes in the notice of termination concerning the dates of the
training. He also pointed out that the evaluations were not completed for
two employees who were also on probation during the relevant time period
(C1 and C2). However, the AJ concluded that such evidence only showed
that there may have been clerical mistakes or mistakes in completing
the evaluation paperwork.
The AJ noted that complainant admitted that he received training and
retraining. According to the AJ, the evidence did not show that any
other employee had the same or similar poor performance as complainant.
Specifically, the AJ noted that C1 was an outstanding employee who picked
up the job quickly. The AJ found no evidence that complainant was held
to higher standards than others. The AJ concluded that the showing
of clerical errors and mistakes in completing the evaluations was not
sufficient to rebut the agency's reasons for terminating complainant.
According to the AJ, while complainant argued that he was improving at
the end of July, as shown by the time records, such a fact alone is not
sufficient to rebut the agency's reasons for the termination. During
the same time, complainant violated the no U-turn policy. In addition,
complainant admitted that during the same period he was confused about his
route and was late. Moreover, not one witness supported the complainant's
claim that he was improving in his overall performance, including his
own witnesses. Accordingly, the AJ concluded that the totality of the
evidence did not show that complainant was improving in his performance
of his job. In sum, the AJ concluded that complainant did not produce
sufficient evidence to show that the agency's reasons were not true but
a pretext for age or sex discrimination
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that substantial evidence in the record supports the AJ's findings and
conclusions. While complainant spends a great deal of effort attempting
to show that the comparison employees were treated more favorably, we
find such evidence unpersuasive and note that a substantial number of
comparison employees fell into one or both of complainant's protected
classes. Accordingly, we AFFIRM the final action.
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
June 10, 2009
Date
1 In July, the supervisors discussed complainant with MCS, noting
that complainant was having trouble in both the field and the office.
MCS reviewed all the training that complainant received. MCS spoke to
complainant about his performance issues and complainant claimed that he
was improving. MCS suggested that he wear a watch and time his delivery.
However, a few days later, she noticed that complainant continued to
have problems. Thereafter, MCS observed complainant sitting in his
vehicle in the parking lot. Complainant told MCS that he was getting
ready to come in and she told him to get going. Yet, minutes later she
saw him still in the vehicle.
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0120073131
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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