01975279
01-06-2000
Michael Blossner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro), Agency.
Michael Blossner v. United States Postal Service
01975279
January 6, 2000
Michael Blossner, )
Complainant, )
) Appeal No. 01975279
v. ) Agency No. 4A117102696
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Metro), )
Agency. )
)
)
DECISION
Michael Blossner (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of age (date of birth: June 23, 1941, 54 at
time of events) in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether complainant has proven by a preponderance
of the evidence that he was subjected to unlawful employment
discrimination on the above-cited basis when he was separated from
employment during his probationary period on October 27, 1995.<2>
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Part-Time Flexible Letter Carrier, PS-05, at the agency's Syosset
Post Office in Syosset, New York. Complainant began his probationary
period on September 12, 1995 and on October 2, 1995 he received a 30-day
evaluation from his supervisor (S1: no date of birth given, age 44 at
time of investigation). He was evaluated as "unsatisfactory" in four
out of six categories, with the excessive length of his "street time"
emphasized. Subsequently, complainant was injured on the job and did not
return to work for a number of weeks. Before he could return to work,
he received a letter notifying him of his separation due to failure to
meet the requirements of the position.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on January 2, 1996,
alleging age discrimination. At the conclusion of the investigation,
complainant first requested a hearing before an Administrative Judge
(AJ), but later withdrew this request and asked that the agency issue
a final agency decision.
The FAD concluded that complainant failed to establish a prima facie case
of age discrimination. First, the FAD concluded that complainant showed
neither that he was qualified for the position he was performing nor
that he was satisfying the normal requirements of the position. Second,
the FAD held that complainant had not established that he was replaced
by an employee outside his protected group, or that he was singled out
for discharge while similarly situated employees were retained.
The FAD went on to conclude that the agency had articulated legitimate
non-discriminatory reasons for its action. Specifically, the FAD noted
that the agency had offered complainant limited duty work during his
probationary period after he was injured, but that complainant failed
to report for duty and repeatedly deferred the date on which he would
be able to return. The FAD concluded that complainant had performed
only 30 days service of his 90-day probationary period and had therefore
failed to qualify for retention as a career employee. S1 testified that
because only the 30-day evaluation containing multiple "unsatisfactory"
ratings was available to him, he had to recommend that complainant be
separated from his probationary position. Finding that complainant
offered no evidence to establish that these articulated reasons were
pretextual or other evidence that discrimination had occurred, the FAD
concluded that no age discrimination had taken place.
CONTENTIONS ON APPEAL
On appeal, complainant raises a number of contentions. First, complainant
notes that when the EEO investigator reviewed complainant's street times,
he did not find them to be "that bad." From this, and from the fact
that the required street times are based on the abilities of experienced
mail carriers, complainant argues that the agency's reliance on his poor
street time is misplaced.
Second, complainant takes issue with the legitimate non-discriminatory
reason articulated by the agency. He contends that he was not fit to
return to work when the agency offered him the limited duty position and
that, contrary to the agency's implication, he did not artificially defer
his return date. While the agency's doctor had indicated he could return
to work on October 5, 1995, pending re-examination, when complainant was
re-examined by his personal physician, he was advised not to return to
work for at least two weeks and to have another examination on October
24, 1995. According to complainant, when he was re-examined on October
24, 1995, his doctor advised that he not return to work until November
14, 1995. Complainant acknowledges that the agency initially received a
statement from his doctor after the October 24, 1995 re-examination that
indicated he could return to work, but notes that this was a clerical
mistake by the doctor's office which was corrected.
Finally, complainant takes issue with the list of Syosset Postal Officer
probationary employees provided by the agency. While the document is
dated September 1992 through October 1995, and illustrates that several
probationary employees over 40 years of age were retained after the
89-day probationary period, complainant correctly notes that there is no
indication that the list is exhaustive. He argues that this list could be
a selective one, created to hide age discrimination that may be occurring.
Complainant also notes that the list does not indicate whether these
probationary periods occurred during the busiest time of year, as his did.
In responding to complainant's appeal statement, the agency reiterates
that complainant did not meet his burden of proof and asks that its FAD
be affirmed.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in an ADEA case, as in a Title
VII case, is a three-step process. McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
Complainant has the initial burden of establishing a prima facie case of
discrimination. A prima facie case of age discrimination in a separation
case is established where complainant has produced sufficient evidence to
show that (1) he is a member of a protected class; (2) he was qualified
for the position he held; (3) he was discharged or subjected to an adverse
employment action; and (4) similarly situated employees significantly
younger than he were treated more favorably in like circumstances.
See Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002 (September 18, 1996).<3>
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).
If the agency articulates an adequate reason for its actions, the burden
of production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination or retaliation. Throughout, complainant retains
the burden of proof to establish discrimination by a preponderance of
the evidence. It is not sufficient "to disbelieve the employer; the
fact finder must believe the plaintiff's explanation of intentional
discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993) (emphasis in original). Moreover, in an ADEA case, the ultimate
burden remains on complainant to demonstrate, by a preponderance of the
evidence, that age was a determinative factor in the sense that "but
for" his age, he would not have been subjected to the action at issue.
See Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Fodale v. Department
of Health and Human Services, EEOC Request No. 05960344 (October 16,
1998).
In the case at hand, complainant failed to establish that similarly
situated employees who were considerably younger than he were treated more
favorably in like circumstances. Based on this fact and complainant's
"unsatisfactory" 30-day evaluation, the agency found that complainant had
not established a prima facie case of age discrimination. Complainant
contended, however, that during his discussion with S1 concerning the
30-day evaluation, S1 stated that the carrier position was very difficult
and that he (S1) did not think he could do it if he had to do it now.
Complainant interpreted S1's statement to imply that complainant's age was
preventing him from finishing his routes quickly enough. S1 acknowledged
having this discussion with complainant, but testified that when he
mentioned not being able to do the job now, he meant to convey to
complainant that he understood the rigors of the job and that he felt
that it was the hardest job in the Postal Service. S1 testified that
he did not intend to make a disparaging remark about complainant's age.
As noted above, complainant may establish a prima facie case of age
discrimination in different ways. In other words, complainant does
not necessarily have to show that similarly situated employees were
treated more favorably then he. Here, we find that S1's statement that
he did not think he would be able to do the job now was a reference to
complainant's age. This constitutes sufficient evidence to raise an
inference of age discrimination, such that the agency must articulate
a legitimate non-discriminatory reason for its action.
The agency did articulate legitimate non-discriminatory reasons for
terminating complainant. S1 testified that when complainant did not
return to work after being injured, S1 could not complete the normal
60 and 89-day evaluations. Therefore, when it came time to make a
decision on whether or not to retain complainant in a career position,
the only evaluation available was the "unsatisfactory" 30-day evaluation.
Based on this evaluation, S1 recommended that complainant be separated
from employment. The Officer-In-Charge of the Syosset Post Office
concurred with this decision. The agency also offered a further reason
for its actions, noting that complainant was offered a limited duty
position after he was injured, but that he failed to return to work and
repeatedly deferred his return date.
Complainant has the ultimate burden of establishing that "but for"
his age, he would not have been separated from employment. Despite his
correct assertion that the evidence of comparative employees submitted
by the agency is incomplete and his explanation of why he did not
return to work when offered the limited duty position, we find that
complainant has not met his burden. Complainant has offered nothing to
establish that S1's explanation for his decision to terminate complainant
was pretextual. The record clearly establishes that complainant was
evaluated as unsatisfactory in four out of six categories as of his
30-day evaluation and that soon after this evaluation, complainant was
injured and did not return to work. Although S1's decision to terminate
complainant rather than allowing him more time to meet the requirements
of the position may have been harsh, complainant has not shown that,
but for his age, a different decision would have been made.
Accordingly, the agency's finding of no age discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
1/6/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
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.
2 Complainant also claims that the filing of his worker's compensation
claim led to his separation. Allegations involving worker's compensation,
however, are outside this Commission's purview and will not be addressed
in this decision.
3 We note that this is only one method of establishing a prima facie
case of age discrimination, and that a complainant is not precluded
from such a showing merely because the comparative employee(s) is not
considerably younger. See Enforcement Guidance on O'Connor.