01a00054
02-14-2001
Vinod B. Kumar, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Vinod B. Kumar v. United States Postal Service (New York Metro Area)
01A00054
February 14, 2001
.
Vinod B. Kumar,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A00054
Agency No. 1A-119-0001-98
Hearing No. 160-98-8409X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the basis of national origin
(Asian-Indian) when, on September 3, 1997, her employment was terminated
during her probationary period. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that complainant, a part time flexible Mail Processor,
PS-04, at the agency's Mid-Island Processing and Distribution Center,
Melville, New York, filed a formal EEO complaint with the agency on
December 16, 1997, alleging that the agency had discriminated against
her as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, however, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of national origin discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated probationary
employees not in her protected class were treated differently under
similar circumstances, i.e., were given more on-the-job training and
assistance during the same period of time.
The AJ further concluded that the agency articulated a legitimate,
nondiscriminatory reason for terminating complainant, namely, that she did
not demonstrate a sufficient aptitude for the position of Mail Processor
during her probationary period, despite being given ample training and
assistance. The AJ found that complainant did not establish that more
likely than not, the agency's articulated reason was a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found that
complainant presented no persuasive evidence that it was her national
origin rather than her failure to perform according to expectations that
resulted in her termination.
The agency's final decision implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she found her
complaint appropriate for summary judgment, as complainant asserts there
were issues of material facts in dispute which could only be resolved by
a hearing. Among the issues listed by complainant are whether: she was
in fact given sufficient training and assistance; her supervisors were
�honestly dissatisfied with� her performance or acted in �bad faith;�
and she was �properly observed� by her supervisors. The Commission notes
that complainant included these same arguments in her brief opposing the
motion for summary judgment. However, complainant has not proffered any
admissible factual evidence sufficient to demonstrate the existence of a
genuine issue of material fact requiring resolution by the fact-finder.
Celotex v. Catreet, 477 U.S. 317, 322-23 (1986).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence which would tend to establish that the
agency's termination of her was motivated by discriminatory animus toward
complainant's national origin, rather than by her failure to perform
according to agency expectations. We discern no basis to disturb
the AJ's decision. 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 final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 14, 2001
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.