Vickey C. Roberts, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01986604 (E.E.O.C. Mar. 29, 2000)

01986604

03-29-2000

Vickey C. Roberts, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Vickey C. Roberts v. United States Postal Service

01986604

March 29, 2000

Vickey C. Roberts, )

Complainant, )

) Appeal No. 01986604

v. ) Agency No. 4D-270-0153-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of sex (female) and disability (physical) in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and

Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791

et seq.<1> For the reasons stated herein, the agency's FAD is affirmed.

ISSUE PRESENTED

The issue on appeal is whether complainant has established that the

agency discriminated against her based on the above factors.

BACKGROUND

During the period in question, complainant was employed as a Part

Time Flexible City Carrier (PTF Carrier), Grade 05, in a North Carolina

facility of the agency. Believing she was a victim of discrimination,

complainant sought EEO counseling and, subsequently, filed a complaint

alleging that the agency discriminated against her based on sex (female)

and disability (physical) when it terminated her employment during her

probationary period.

Complainant stated that the agency's action was discriminatory because

a male carrier (E-1) was treated more favorably than she, she was not

properly trained, and two of the periodic evaluations conducted during

her probationary period were while she was suffering with an on-the-job

injury<2>.

Complainant's supervisor (C-1) stated that he terminated complainant

due to her unsatisfactory performance during her probationary period.

C-1 specifically indicated that complainant did not make reasonable

progress towards the efficient and timely delivery of mail, she failed

to report an accident in a timely manner, she failed to follow safety

and security regulations when using her agency-assigned vehicle, and she

failed to take reasonable shortcuts in the delivery of mail. He added

that complainant consistently received an unsatisfactory score for work

quantity and quality during her periodic evaluations.

At the conclusion of the complaint's investigation, the agency notified

complainant of her right to a hearing before an EEOC administrative judge

or an immediate FAD. The agency issued a FAD finding no discrimination

based on sex or disability. This appeal followed.

ANALYSIS AND FINDINGS

When a complainant relies on circumstantial evidence to prove an

agency's discriminatory intent or motive, there is a three step,

burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). The initial burden is on the complainant to establish a prima

facie case of discrimination. Id. at 802. The burden then shifts to

the agency to articulate some legitimate, nondiscriminatory reason for

its challenged action. Id. If the agency is successful, the complainant

must then prove, by a preponderance of the evidence, that the legitimate,

nondiscriminatory reason articulated by the agency is merely pretext for

its discrimination. Id. at 804. Although this analysis was developed

in the context of Title VII, it is equally applicable to claims brought

under the Rehabilitation Act. Prewitt v. U.S. Postal Service, 662 F.2d

292 (5th Cir. 1981).

Because the agency articulated a legitimate, nondiscriminatory reason for

its action, we may proceed directly to determining whether complainant

satisfied her burden for showing pretext. Haas v. Department of Commerce,

EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service

Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this

in one of two ways, either directly, by showing that a discriminatory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Texas Dep't

of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,

the fact finder must be persuaded by the complainant that the agency's

articulated reason was false and that its real reason was discrimination.

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

For purposes of this analysis, we shall assume complainant is a person

with a disability. The agency indicated that it terminated complainant

for unsatisfactory performance during her probationary period. C-1 stated

that complainant's unsatisfactory performance included her inability

to make reasonable progress towards the efficient and timely delivery

of mail, her failure to timely report an accident, her failure to

follow safety and security regulations when using an agency vehicle,

and her failure to take reasonable shortcuts in the delivery of mail.

C-1 added that complainant's poor work quantity and quality were conveyed

in the periodic evaluations conducted prior to her termination.

Complainant stated that the agency's actual reason was discriminatory

because E-1 who was a similarly situated person outside of her protected

sex class was treated more favorably than she, the agency did not properly

train her, and two of her periodic evaluations were conducted while she

was on restricted duty from an on-the-job-injury.

The record revealed that E-1 was a casual appointment, which did not

require a probationary period, rather than a career appointment, like

complainant, which served a 90 day probationary period. The record also

indicated that complainant was provided training, although admittedly by

her coworkers rather than her supervisor. The record further revealed

that the agency's employment manual indicated that periods of absence

from work were counted toward completion of the probationary period.

The Commission finds that implicit in this employment manual provision is

that placement on restricted duty would also be counted toward completion

of the probationary period. Accordingly, the complainant failed to

prove discrimination based on sex or disability.

CONCLUSION

The Commission finds that complainant failed to present evidence that

more likely than not, the agency's articulated reasons for its actions

were a pretext for discrimination. Therefore, after a careful review of

the record, including complainant's contentions on appeal, the agency's

response, and arguments and evidence not specifically addressed in this

decision, we AFFIRM the agency's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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:

March 29, 2000

____________________________

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

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 On May 27, 1997, complainant suffered a work-related injury to her left

foot, which placed her on restricted duty until July 10. The agency

conducted a periodic evaluation of complainant on June 8, 1997, July 8,

1997, and July 28, 1997. These evaluations were the 30 day evaluation,

the 60 day evaluation, and the 80 day evaluation, respectively.