Vernon D. Mathis, Appellant,v.William J. Henderson, Postmaster General, Unites States Postal Service (Southeast/Southwest Areas) Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01974217 (E.E.O.C. Oct. 14, 1999)

01974217

10-14-1999

Vernon D. Mathis, Appellant, v. William J. Henderson, Postmaster General, Unites States Postal Service (Southeast/Southwest Areas) Agency.


Vernon D. Mathis v. Unites States Postal Service

01974217

October 14, 1999

Vernon D. Mathis, )

Appellant, )

)

)

v. ) Appeal No. 01974217

) Agency No. 1H326107495

)

William J. Henderson, )

Postmaster General, )

Unites States Postal Service )

(Southeast/Southwest Areas) )

Agency. )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

his allegation that the agency discriminated against him in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. This appeal is accepted by the Commission in accordance

with the provisions of EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented is whether appellant has established by a

preponderance of the evidence that the agency discriminated against him

on the bases of race (African American), color (black), and sex (male)

when, on August 25, 1995, appellant became aware that a Caucasian,

female employee who failed her scheme and was terminated was reinstated

as a career employee while appellant was not reinstated after failing

his scheme.

BACKGROUND

In a formal complaint filed on October 28, 1995, appellant alleged that

the agency discriminated against him as referenced above. The agency

accepted appellant's complaint and conducted an investigation. At the

conclusion of the investigation the agency notified appellant of his right

to request a hearing before an EEOC administrative judge (AJ) or a final

decision by the agency without a hearing. Appellant failed to respond.

Thereafter, on April 9, 1997, the agency issued a final agency decision

(FAD) finding no discrimination. It is from this decision that appellant

now appeals.

The record reveals that appellant, a Causal Employee, was terminated

after having failed to properly perform the duties of his position in

that he failed to qualify on an assigned outgoing scheme. Subsequently,

the parties signed a mediation agreement in which appellant agreed

to withdraw his pending EEO complaints in exchange for the agency's

promise to rehire him as a Temporary Employee (TE). However, appellant

failed to qualify for a second time on the outgoing scheme within the

required 90 day probation period and was terminated. On August 25,

1995, appellant became aware that a Caucasian, female employee, who also

failed to qualify on the outgoing scheme, was reinstated.

The record establishes that the comparison employee cited by appellant

was not similarly situated to appellant for the following reason.

According to the testimony of management officials, both appellant and the

alleged comparative failed their scheme training and both were terminated

as a result. However, appellant signed a mediation contract to return

to work in his previous position as a Transitional Employee and given a

second attempt to qualify for the position. He failed to qualify and was

terminated for a second time. In contrast, the comparative's case went

to arbitration, and the arbitrator ruled that she should be reinstated.

Record evidence also establishes fellow employees not in appellant's

protected group who were also terminated for scheme failure.

ANALYSIS AND FINDINGS

Appellant's allegation of discrimination constitutes a claim of disparate

treatment which is properly analyzed under the three-tier order and

allocation of proof as set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

However, the McDonnell Douglas analytical paradigm need not be adhered

to in all cases. In appropriate circumstances, when the agency has

established legitimate, nondiscriminatory reasons for its conduct, the

trier of fact may dispense with the prima facie inquiry and proceed to

the ultimate stage of the analysis, i.e., whether the complainant has

proven by preponderant evidence that the agency's explanations were a

pretext for discrimination. See United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department

of Transportation, EEOC Request No. 05900159 (June 28, 1990). Since the

agency has articulated a legitimate, nondiscriminatory reason for its

action, the Commission will consider whether the agency's explanations

for its actions were a pretext for discrimination.

Appellant's assertion that the reason for his termination was based

on his race, color, or sex is not supported by the record. The record

fails to establish that the agency's motivation for terminating appellant

was based on anything but his failure to qualify on the outgoing scheme

within the required probationary period. Appellant failed to show that

the agency's reason for its action was a pretext for discrimination.

CONCLUSION

Accordingly, it is the decision of the EEOC to AFFIRM the agency's final

decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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. �l6l4.604(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 this 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 this 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 this 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. Both the request and the civil action must be Filing a request for

an attorney does not extend your time in which to file a civil action.

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

Oct. 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations