0120071982
08-09-2007
Tracey L. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Tracey L. King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120071982
Hearing No. 530200600256X
Agency No. 1C151001406
DECISION
On March 12, 2007, complainant filed an appeal from the agency's February
14, 2007, final decision concerning her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
On April 1, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African-American), sex
(female), color (Black), and disability (weight) when: (1) on January 18,
2006, she was denied light duty; and (2) she was subsequently terminated
from employment during her probationary period for being unable to
perform the duties of a Mail Handler.
The record reflects that complainant was employed as a part-time
flexible Mail Handler at the agency's Processing and Distribution Center
("facility"). Complainant alleged that the facility's Acting Supervisor
(AS), Supervisor, Distribution Operations (SDO) and Manager Distribution
Operations (MDO) discriminated against her. The record further reflects
that complainant began her employment with the agency on November 26,
2005, and when the AS performed a 30 day evaluation of complainant's
work habits on December 24, 2005, she was rated unsatisfactory in
three (3) of five (5) categories. The record indicates that a note
on complainant's Probationary Report indicates that she was rated
unsatisfactory in the first 30 days and there were no improvements.
In addition, complainant's supervisors could not further evaluate her
work as she was absent from work for two (2) weeks in January of 2006.
Complainant was terminated from employment on January 26, 2006 as she
was unable to perform the duties of Mail Handler.
Believing she was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint. At the
conclusion of the investigation, complainant was provided with a copy
of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing but the AJ remanded the complaint to the agency
for the issuance of a final agency decision (FAD) on January 17, 2007.
The agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that she was subjected to
discrimination as alleged.
The FAD found that complainant failed to establish a prima facie case
of discrimination based on race, color or sex. While the FAD noted that
complainant is a member of protected groups and she was terminated during
her probationary period, she failed to establish that she was denied
light duty. The FAD noted the testimony of the MDO that complainant's
request for light duty would have been approved had she been permitted
to continue her employment with the agency. FAD at 9. The FAD found
that complainant failed to establish that there were similarly situated
employees not in her protected groups who were treated differently under
similar circumstances. A comparison employee (C1) cited by complainant
was found by the FAD to not be similarly situated as complainant received
a negative 30 day evaluation and then missed work between January 4, 2006
and January 17, 2006, such that she could not be evaluated by management.
In addition, the FAD noted that male employees at the facility were
permitted to sit down while on the job, but were full-time career
employees who had completed their probationary period.
Regarding her allegation of disability discrimination, the FAD noted that
complainant alleged her disabilities were weight and difficulty breathing.
However, the FAD found that complainant failed to proffer evidence
which establishes that she is a qualified individual with a disability
pursuant to the Rehabilitation Act. In so finding, the FAD noted that
complainant failed to set forth any major life activities which were
severely restricted. The FAD also found that complainant failed to
proffer any evidence which suggests that the agency failed to provide
an accommodation to her which resulted in adverse treatment. FAD at 12.
The FAD then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The SDO stated that
complainant's 30 day performance was "bad" and she saw no improvement in
her work habits. The MDO stated that he concurred in the termination
of complainant, and that she was terminated because the SDO could not
evaluate her during her probationary period. The SDO stated that she
could only evaluate complainant on the time period she worked, and during
that time her employment was substandard. The AS stated that he spoke
to complainant and urged her to work with a sense of urgency; however,
she moved slowly and did not show any enthusiasm towards any job she
was assigned. FAD at 13. The FAD then found that complainant failed to
establish that the agency's articulated reasons were more likely than not
a pretext for discrimination. Complainant failed to submit arguments with
her appeal, and the agency has failed to respond to complainant's appeal.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Addressing complainant's allegation (1), we initially find that
complainant failed to establish a prima facie case of discrimination
on any basis.1 Initially, we note that the record indicates that
there were no similarly situated employees outside of complainant's
protected groups who were treated differently under similar circumstances.
The Commission notes that the comparison employees cited by complainant
were not similarly situated as: (1) she received an unsatisfactory 30
day evaluation and was unable to be further evaluated by the agency,
while a comparison employee improved her performance after her initial 30
day evaluation and was allowed to have a light duty assignment; and (2)
the other cited employees had successfully completed their probationary
period and were not assigned light duty positions. In addition, as
found by the FAD, there is no evidence in the record that the agency
denied complainant's request for light duty. The record indicates
that the request would have been granted had complainant completed her
probationary period, but she was terminated during her probationary
period and was not at work enough following the initial evaluation for
management to evaluate her progress and act on her light duty request.2
Regarding complainant's allegation (2), we concur with the FAD's
finding that complainant failed to establish that there were any
similarly situated employees not in her protected groups who were
treated differently under similar circumstances. The record indicates
that complainant was terminated as her initial 30-day probationary
evaluation was unsatisfactory, and she was unable to improve her
performance following the initial evaluation. Agency management
stated that complainant's work habits did not improve following the
initial evaluation and she was not sufficiently dependable to carry
out her duties. The SDO stated that she considered the comments of
the AS and the MDO in making the decision to terminate complainant.
The MDO stated that complainant's request for light duty had no affect
on the decision to terminate her. Investigative File, at Affidavit D.
We note the statement of the AS, that complainant did not perform the
duties which were assigned to her and did not show any enthusiasm towards
any job she was assigned. We further find that complainant failed to
proffer any evidence which shows that the agency's articulated reasons
for terminating her during the probationary period were more likely than
not a pretext for discrimination.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____8-09-07______________
Date
1 For purposes of analysis, and without specifically finding, we will
assume that complainant is an individual with a disability under the
provisions of the Rehabilitation Act.
2 As previously stated, complainant was absent from work during
her probationary period from January 4, 2006 until January 17, 2006,
following her initial 30 day probationary evaluation.
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0120071982
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071982