0120101722
08-05-2010
Don Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Don Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120101722
Hearing No. 460-2009-00151X
Agency No. 1G-771-0007-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 4, 2010 final action concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
On July 19, 2008, Complainant was hired as an Electronics Technician Trainee, PS-08, at the Agency's Houston Processing and Distribution Center (P&DC) in Houston, Texas, subject to a ninety-day probationary period.
On January 31, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), color (dark brown), disability (mental stress and hypertension), and age (over 40) when:
he was not properly trained during his probationary period as an Electronics Technician Trainee and was subsequently terminated on October 14, 2008.
Following the investigation into the formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 1, 2010, the AJ issued a decision by summary judgment in favor of the Agency. In its February 4, 2010 final action, the Agency implemented the AJ's decision.
In her decision, the AJ found that Complainant did not establish a prima facie case of race, color, disability and age discrimination.1 The AJ found that assuming Complainant established a prima facie case of race, color, disability and age discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The Manager, Maintenance Operations (M1) stated that on August 4, 2008, Complainant participated in the Maintenance Skills Development Program (MSDP) until his termination on October 14, 2008. M1 stated that the MSDP training was delivered via distance learning, facilitated by five named on-site facilitators. With respect to Complainant's allegation that he was not properly trained, M1 stated "I do not recall [Complainant] saying he was not properly trained in conversations I had with him. To the contrary his conversations left me with the impression that he was going to do well on the exam."
Complainant asserted that he was told by all upper management, when they spoke to the class, that they would be taught everything they needed to know to pass the 932 examination; however, there were questions on the examination of a level of difficulty that had not been covered in training. Regarding this assertion, M1 stated "the time I spent with the class (very limited) I do not recall Management saying that or implying that [Complainant] would be taught everything he needed to know to pass the 932 exam." M1 stated that Complainant was told from the beginning of the course that he had failed one or more of the mechanical Knowledge, Skills or Abilities (KSAs), but that he had passed the electronic KSA's of the 932 Exam, which made him a good candidate for the ET Trainee/ET Lite Program. M1 stated that the class that Complainant was required to attend was the MSDP class that was developed to prepare employees who qualified to take the 931 Exam for Maintenance Mechanics and the 933 exam for Maintenance Mechanics, Mail Processing Equipment (MPE). M1 stated that the rationale was that after participating in the MSDP class, the ET Lite candidates would have a better mechanical background/knowledge and would be better equipped to pass the mechanical KSA's for the 932 Examination.
Further, M1 stated that he told Complainant that he would have to pass the 932 Examination after completing the ET Lite Program, in order to continue his employment with the Agency. M1 stated further that that there were requirements of the MSDP class he was about to attend. M1 also stated that he explained to Complainant that as an entrance employee he would be evaluated by his supervisor over a ninety- day period and that an unsatisfactory evaluation could result in termination from Agency employment. M1 stated that the Memorandum of Understanding concerning Implementation Guidance for ET Trainee PS-08 gives applicants the opportunity to take the 931 Exam and 933 Exam after completion of the MSDP training. M1 stated that these examinations are qualifying examinations for other jobs in maintenance but Complainant was terminated before he had an opportunity to take any of those exams.
The Electronics Technician (ET) stated that in regard to Complainant's allegation that he was not properly trained as an Electronics Technician, the ET Lite class "was not meant to teach electronics. It is geared to enable people to become maintenance mechanics. My understanding is that people taking the 932 ET exam were failing KSAs (knowledge, skills, ability) that are covered in the MSDP (Maintenance Skills Development Program). They were put into this class to expose them to these KSAs and then Restest them." ET further stated that Complainant did raise the issue that he was not being properly trained during the first week of class and that a named Agency official told Complainant that what he was requesting was beyond the scope of the class.
With respect to Complainant's allegation that M1 stated that employees who did not pass the 932 Examination had the option to take an examination for employment in other areas, ET stated that Complainant misunderstood M1's explanation. Specifically, ET stated that M1 was referring to the Memorandum of Understanding regarding Implementation Guidelines for ET Trainees. Specifically, ET stated that the memorandum states in part that "ET Trainees after completion of the MSDP class will take the 931 and 933 Exams. After passing the 932 Exam they would be promoted to ET and within six months and successful completion of ET training on various systems. If they failed the specific ET training, they would be downgraded to another career position for which the employee is qualified."
With respect to Complainant's allegation that M1 made comments at the beginning of the programs concerning how he could get rid of people before and after the ninety-day probationary period, ET stated "I didn't hear [M1] say he could get rid of people after the ninety-day period." ET stated that
The Supervisor Maintenance Operations (SMO) stated that in regard to Complainant's allegation that he was not properly trained as an Electronics Technician, SMO had four employees, including Complainant, in the MSDP and each employee "received the same training. Each received training in the classroom and under me were assigned to work with other maintenance personnel on the equipment. [Complainant] had the opportunity to work with others, learn from them, in addition to the classroom training." SMO further stated that Complainant was given an evaluation "at thirty, sixty and eighty days. During each of these evaluations [Complainant] was given the opportunity to express his concerns and make comments to me. He had no comments." SMO stated that he decided to terminate Complainant during his probationary period because he "failed the testing requirements." Furthermore, SMO stated that Complainant's race, color, disability and age were not factors in his determination to terminate him during his probationary period.
The Manager, Maintenance (MM) stated that he was the concurring official concerning Complainant's termination. Specifically, MM stated that he concurred with SMO's decision to terminate Complainant during his probationary period because of "failure to qualify for the ET position by not passing the associated 932 (ET) exam." The record reflects that M1 indicated that Complainant received the same training as four other employees in the ET Lite
Program, including the MSDP. The record further reflects that two out of the four employees passed the exam and the other two did not.
MM stated that in regard to Complainant's allegation that he was told by all upper management when they spoke to the MSDP class that they would be taught everything they needed to know to pass the 932 exam, "the course is and was designed by the National Center for Employee Development (NCED) and was taught jointly with NCED and local administrators. All course material was covered fully." Furthermore, MM stated that Complainant "was properly trained. The Complainant was properly terminated for just cause. If the Complainant does indeed have a medical impairment, it is unknown to me and was not a factor in training or termination."
On appeal, Complainant, through his representative, argues that the AJ erred in issuing a decision without a hearing because his representative never received a copy of the Agency's Motion for Summary Judgment which prevented him from responding to the motion in a timely manner. Complainant further argues that the reason he filed the instant complaint was because the Agency "rearranged a Training Course, so that it would place important Skill Knowledge training and instruction where it would be taught in the training class after the test had been administered. The Appellant believes these actions were taken to prevent him from being employee at the Postal Service because [he] is a black male and because of his age."
In response, the Agency argues that Complainant received a copy of its Motion for Summary Judgment because its certificate of service indicated that the AJ, Complainant and his representative were all served copies on January 4, 2010 at the addresses provided by Complainant and his representative. The Agency further argues even assuming Complainant's representative did not receive its Motion, Complainant did and at no time did he contact the Agency to notify of his representative's alleged non-receipt of the Motion and at no time did he share his copy of the Motion to respond timely. Finally, the Agency requests that the Commission affirm its final action.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
We note that Complainant, on appeal, argued that his representative did not receive a copy of the Agency's Motion for a Summary Judgment which prevented him from responding to the motion in a timely manner. We note that the record contains a copy of the Agency's certificate of service dated January 4, 2010 indicating that its motion for summary judgment was sent to the AJ, Complainant and his representative at the addresses provided by them. The record also contains a copy of Complainant's appeal submitted by his representative. We note that a review of the envelope which contained Complainant's appeal package reveals his representative's address of record which is the same address in the Agency's January 4, 2010 certificate of service. We are not persuaded by Complainant's claim that his representative never received a copy of the Agency's motion.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 5, 2010
__________________
Date
1 For purposes of this analysis, we assume without finding that complainant was a qualified individual with a disability.
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0120101722
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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