Sammie L. Weatherby, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 30, 2002
01994738 (E.E.O.C. Jan. 30, 2002)

01994738

01-30-2002

Sammie L. Weatherby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sammie L. Weatherby v. United States Postal Service

01994738

January 30, 2002

.

Sammie L. Weatherby,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01994738

Agency No. 4H350015897

DECISION

INTRODUCTION

On May 25, 1999, Sammie L. Weatherby (complainant) initiated an appeal

to the Equal Employment Opportunity Commission (EEOC or Commission) from

the final decision (FAD) of the United States Postal Service (agency),

concerning his complaint of unlawful 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.; the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

AFFIRMS the agency's FAD.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

complainant on the bases of race (Black), sex (male), age (45), and

disability (foot spur) when, during his probationary period, he was

notified that he would be terminated, effective March 18, 1997.

BACKGROUND

During the relevant time, complainant was a probationary employee in

a Part-Time Flexible Carrier position at a Post Office (the facility)

in Bessemer, Alabama. Complainant began duty on December 21, 1996.

The record reveals that complainant received satisfactory ratings in

his thirty day evaluation; received a rating of unacceptable in Work

Quantity and satisfactory in all other categories in his sixty day

evaluation; and received a rating of unacceptable in Work Quantity, Work

Quality and Work Methods, while receiving a satisfactory rating in the

remaining categories, in his eighty day evaluation. Complainant noted

that at the conclusion of his final evaluation, his supervisor (RMO)

commented that complainant had a �slight limp� in his right leg/foot and

questioned whether the limp could be the problem. On March 17, 1997,

RMO issued a Notice of Removal During Probation for failure to develop

skills necessary to effectively and efficiently complete delivery of mail.

Complainant asserted that other new employees were given more hands

on training and an open line of communication, allowing them to ask

questions. He believed that RMO gave the other employees opportunities

to make mistakes in the learning process and that they were given

positive guidance. RMO asserted that he, in the presence of a union

representative, informed complainant of his deficiencies and demonstrated

how to do the route and how to case mail.

Believing he was a victim of discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on April 11, 1997.

At the conclusion of the investigation, complainant was informed of his

right to request a hearing before an EEOC Administrative Judge (AJ) or

alternatively, to receive a final decision by the agency. Initially,

complainant requested a hearing before an AJ. However, complainant

later requested a FAD, and the AJ remanded complainant's file to the

agency on March 17, 1999.

In its FAD dated April 20, 1999, the agency concluded that the record

did not establish that complainant is an individual with a disability

as defined by the Rehabilitation Act because he failed to demonstrate

that his foot spur substantially limited a major life activity, that

he had a record of such impairment, or that he was regarded as having

such an impairment. With respect to the bases of race, sex, or age

discrimination, the agency found that complainant failed to establish

a prima facie case. The agency then assumed arguendo that complainant

had established a prima facie case of race, sex, and age discrimination,

and it offered a legitimate, nondiscriminatory reason for its action.

Specifically, the RMO stated that complainant failed to develop the skills

necessary to effectively and efficiently complete delivery of mail.

The agency found that complainant failed to prove that its reason for

terminating him was a pretext for race, sex, and age discrimination.

On appeal, complainant contends, among other things, that: (1) as a first

time carrier, he never exceeded the time established for completion of a

route by more than five (5) minutes; (2) he was regarded as disabled by

RMO; and (3) his termination denied him the opportunity to work in other

agency positions for which he had been previously considered, reflecting

RMO's abuse of authority. Complainant also included statements from four

(4) former co-workers. Two (2) of the co-workers stated that complainant

delivered his mail in a timely manner and that RMO appeared to harass

complainant. The other 2 co-workers stated that they had never seen

complainant return undelivered mail to the facility. The agency makes

no statement on appeal.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part 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 case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, that is, that a

prohibited consideration was a factor in the adverse employment action.

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. 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. 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. United States

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990).

For the purposes of this decision, the Commission assumes that complainant

established a prima facie case of race, sex, age, and disability

discrimination. The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its action. Here, the RMO stated

that complainant failed to develop the skills necessary to effectively

and efficiently complete delivery of mail. To support this assertion,

the agency presented the following examples: (1) complainant returned

undelivered mail to the facility; (2) on several occasions complainant

became disoriented and phoned the facility, stating that he had gotten

lost; (3) complainant failed to account for his whereabouts for extended

periods; and (4) complainant's performance was rated unsatisfactory in

several categories in his sixty and eighty day evaluations.

Since the agency articulated a legitimate, nondiscriminatory reason

for its action, the burden returns to the complainant to demonstrate

that the agency's articulated reason is unworthy of belief. While

complainant asserted that he did not exceed the time established for

completion of a route by more than 5 minutes, the record reflects that

complainant exceeded the time established on several occasions and

returned undelivered mail to the facility. For example, the record

reflects that on one occasion a 5 hour city route took complainant

seven (7) hours to complete. We note that, while this may not have

been a regular occurrence, the record indicates that RMO expressed his

concerns regarding complainant's performance with a witness present, and

complainant did not dispute the accuracy of RMO's example, but instead

gave explanations. We further note that, while complainant believed

his explanations addressed RMO's concerns, the Commission cannot second

guess an employer's business decisions but can focus only on an employer's

motivation for such decisions. See Burdine, 450 U.S. at 256. In addition,

although 2 of complainant's co-workers stated that complainant delivered

his mail in a timely manner and 2 other co-workers stated that they

had never seen complainant return undelivered mail to the facility,

RMO was better positioned to observe complainant's performance on an

ongoing basis. Finally, complainant contended that his termination

denied him the opportunity to work in other agency positions for which

he had been previously considered, reflecting RMO's abuse of authority.

The record reflects, however, that complainant was not eligible for

transfer into the other positions until he completed eighteen (18)

months in the Carrier position.<2>

Complainant has not met his burden of establishing, by a preponderance

of the evidence, that the agency's legitimate reason was a pretext

for discrimination. Therefore, we find that complainant has failed to

prove that the agency discriminated against him on the bases of race,

sex, age, or disability.

CONCLUSION

After a careful review of the record, including complainant's contentions

on appeal and arguments and evidence not specifically addressed in this

decision, the Commission AFFIRMS the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

January 30, 2002

__________________

Date

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2 Complainant also alleged that RMO harassed him and failed to complete

PS Form 1750, Recommendation for Retention or Rehire. We note, however,

that these actions were not identified as issues in the subject complaint,

and therefore will not be addressed in this decision.