01971122
09-09-1999
Pamela White, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Pamela White, )
Appellant, )
) Appeal No. 01971122
v. ) Agency No. 4-H-330-2750-93
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on
the basis of national origin (American), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when, on August 4, 1993,
her employment was terminated. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as a Transitional Employee Letter Carrier, at the agency's Norland
Branch Station in Miami, Florida. She was hired effective June 30,
1993, and terminated five weeks later, on August 4, 1993.
Believing herself to be a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on September 29, 1993.
At the conclusion of the investigation, appellant requested that the
agency issue a final agency decision.
The FAD concluded that appellant did not establish a prima facie case of
national origin discrimination because she failed to prove that, at the
time of her termination, she was performing her job �in a satisfactory
manner.�
From the FAD, appellant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), and Ashley v. Department of Defense,
EEOC Petition No. 03980009 (September 24, 1998), the Commission finds
that appellant failed to prove, by a preponderance of the evidence,
that the agency's articulated reasons for its actions were a pretext
for discrimination.<1> In reaching this conclusion, we note that the
record contains contemporaneously created documentary evidence showing
that, immediately prior to her termination, appellant was not properly
performing the duties of her letter carrier position. Appellant does
not directly refute the accuracy of this documentary evidence.
CONCLUSION
Therefore, after a careful review of the record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
September 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Although the initial
inquiry in a discrimination case usually focuses on
whether the complainant has established a prima
facie case, following this order of analysis
is unnecessary where, as here, the agency has
articulated a legitimate, nondiscriminatory
reason for its actions, i.e., appellant's
failure properly to perform her assigned duties.
See Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990). In such
cases, the inquiry shifts from whether the
complainant has established a prima facie case to
whether she has demonstrated by a preponderance
of the evidence that the agency's reason for its
actions was a pretext for discrimination. Id.;
see also United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 714-17 (1983).