Faye L. Carpenter, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 2005
01a53967 (E.E.O.C. Oct. 6, 2005)

01a53967

10-06-2005

Faye L. Carpenter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Faye L. Carpenter v. United States Postal Service

01A53967

October 6, 2005

.

Faye L. Carpenter,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A53967

Agency No. 4C-270-0072-04

DECISION

Complainant filed this appeal with the Commission from the April 5,

2005 agency decision finding no discrimination.

Complainant alleged that the agency discriminated against her on the

bases of race (Caucasian) and color (white) when on February 10, 2004,

she received a letter of separation during her probationary period for

failure to meet scheme and boxing standards.

At the conclusion of the investigation, complainant was provided with a

copy of the Report of Investigation and informed of her right to request

a hearing before an EEOC Administrative Judge (AJ) or, alternatively,

to receive a decision by the agency. Complainant requested a hearing but

subsequently withdrew her request. The AJ issued an order, dated March

31, 2005, cancelling complainant's hearing request and returning the case

to the agency for further processing pursuant to 29 C.F.R. � 1614.110(b).

In its decision finding no discrimination, the agency concluded that

complainant failed to establish a prima facie case of race or color

discrimination, noting that complainant failed to show that anyone not

in her protected classes was treated more favorably than she was in a

similar situation. The agency further concluded that it articulated

a legitimate, nondiscriminatory reason for its action, i.e., that

complainant failed to demonstrate the potential to perform the duties

of her position, failed to meet scheme and boxing standards, and failed

to demonstrate any sense of urgency in any assigned task.

Complainant contends that there were no boxing standards and that two

other employees stated in their affidavits that there were no boxing

standards. She further contends that the national boxing standard that

is contained in the record is actually about the rate of speed in which

mail was to be sorted by a delivery point sequence machine and that she

never operated a delivery point sequence machine.

The record reveals that complainant, a part time flexible clerk in the

Elizabeth City Post Office, began working for the agency on December 13,

2003, and was terminated on February 10, 2004.

The record contains complainant's affidavit. She stated that she did not

know of any other probationary employees who were terminated for similar

reasons or under similar circumstances. She stated that in December 2003,

she heard her supervisor refer to an African-American co-worker (Co-worker

A) as a "dumb nigger." Complainant further stated that she believed

that her supervisor used this word so that complainant would understand

how she was expected to act. She also stated that she fraternized with

African-American co-workers and that throughout her employment, anytime

that there were two African-Americans or herself boxing mail in the same

area, her supervisor would separate them. Complainant stated further

that her supervisor would allow Caucasian co-workers to work together.

Regarding her letter of termination, complainant stated in her affidavit,

that as of the date of the dismissal, she had been given only 36 hours of

the 40 hours allowed to study and learn the scheme. She also stated that

she was never given an official scheme test. Complainant also stated

that there were no boxing standards. Complainant also stated that her

supervisor told her on a daily basis that she had to obtain a certain

score to pass the scheme test and that she felt harassed.

The record contains the two affidavits of complainant's supervisor.

Complainant's supervisor stated that complainant was the first

part-time flexible clerk that she had hired since becoming a supervisor.

She stated further that complainant was extremely slow in completing

her duties and that someone always had to help complainant or finish

the task. Complainant's supervisor also stated that complainant's work

was unacceptable regarding speed, accomplishing tasks efficiently and

timely, and the making of mistakes. She also stated that complainant did

not perform work that met the expectations of the position for which she

was hired. She further stated that complainant was unable to meet time

restraints and frequently made errors, noting that complainant placed

mail at the wrong station for city and rural carriers. Complainant's

supervisor stated that complainant was unable to work with others and took

offense when she corrected complainant's mistakes or directed complainant.

Regarding boxing and scheme standards, complainant's supervisor stated

in her affidavits that the there was a National Standard that all clerks

had to follow. She stated that per hour, all clerks had to sort 5.5 feet

of letters, 6.88 feet of flats, and 325 parcels. Clerks also had to box

10 feet of delivery point sequence letters and 7 feet of flats hourly.

The record contains a copy of the National Standards which are consistent

with the standards detailed in the affidavit of complainant's supervisor.

Regarding the scheme training and scheme testing, complainant's supervisor

stated that complainant was to be given up to 40 hours of scheme training.

She stated that complainant had 36 documented hours of scheme training

and was given an additional three hours of scheme training daily.

She further stated that complainant was given the scheme test and

did not pass. She also stated that the scheme test was not the major

issue for complainant's termination. She stated that complainant was

terminated because she was not able to perform in the manner she needed

to get the job done. Complainant's supervisor also stated that all

the city and rural carriers complained about complainant's slowness.

She stated further that she explained to complainant how to accomplish

her tasks by using shortcuts and gave her suggestions about sorting

small parcels but complainant thought she was harassing her when she

was trying to help complainant get her work up to speed.

Complainant's supervisor denied calling any employee by a demeaning name.

She stated that complainant attempted to cause problems between her

(supervisor) and other employees by accusing her of making slanderous

remarks about Co-worker A. Complainant's supervisor stated that

African-Americans and Caucasians worked together all day performing all

types of functions.

Complainant's supervisor stated that she had terminated three employees,

two White females and one Black female, but that the three had never

actually worked before their termination. She stated that they were

terminated for not showing up on the first day of training, not having

a drug test, and not completing medical forms.

The affidavit of the Postmaster is contained in the record. He stated

that he observed complainant during her 90-day probationary period and

concurred with complainant's supervisor that she should be terminated.

He stated that complainant never demonstrated a sense of urgency

in completing her tasks. The Postmaster stated that all employees

are informed during their 90-day probationary period that they can

be terminated without cause. He stated that he was not aware of any

employees who were treated more favorably than complainant under similar

circumstances. He also stated that he had not terminated anyone else

for the same or similar reasons for which complainant was terminated.

In a 30-day evaluation for the period ending January 12, 2004, complainant

was rated by her supervisor as unsatisfactory on work quantity and

personal conduct. She received a satisfactory rating for work quality,

dependability, work relations and work methods. On the evaluation,

complainant's supervisor noted that complainant was extremely slow in

completing tasks, had to be told what to do, and had to be reminded of

uncompleted tasks. For her evaluation for the period ending February

9, 2004, complainant was rated by her supervisor as unsatisfactory

for work quantity, work quality, work relations, and personal conduct.

Complainant received satisfactory for dependability and work methods.

In a letter, dated March 17, 2004, the Postmaster noted that complainant

was terminated on the fifty-eighth day of her 90-day probationary period

for failure to meet employment standards.

The record contains the February 9, 2004 letter of termination from

complainant's supervisor to complainant. The letter stated that during

complainant's probationary employment, she did not demonstrate the

potential to perform the duties of the position for which she was hired.

The letter also stated that complainant failed to meet scheme and boxing

standards and that even when boxing DPS mail, her work performance

was substandard. The letter further stated that complainant failed to

demonstrate any sense of urgency in any assigned task.

To establish a prima facie case of race, color, or national origin

discrimination, a complainant must show the following: (1) complainant was

a member of the protected class; (2) an adverse action was taken against

complainant; (3) a causal relationship existed between complainant's

membership in the protected class and the adverse action; and (4)

other employees outside of complainant's protected class were treated

differently.

In a complaint which alleges disparate treatment and there is an absence

of direct evidence of discrimination, the allocations of burdens and

the order of presentation of proof is a three-step process. A claim

of disparate treatment is examined under the three-part analysis first

enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he or she must first establish

a prima facie case of discrimination by presenting facts that, if

unexplained, reasonably give rise to an inference of discrimination,

i.e., that a prohibited consideration was a factor in the adverse

employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco

Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency

must articulate a legitimate, nondiscriminatory reason for its actions.

See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). If the agency is successful in meeting its burden, complainant

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

proffered by the agency was a pretext for discrimination. Id. at 256.

However, the ultimate burden of persuading the trier of fact that the

agency intentionally discriminated against complainant remains at all

times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 143 (2000).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for its action, the

factual inquiry can proceed directly to the third step of the McDonnell

Douglas analysis to the ultimate issue of whether complainant has shown by

a preponderance of the evidence that the agency's actions were motivated

by discrimination. See United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of

Transportation, EEOC Request No. 05900159 (June 28, 1990). The burden

of persuasion that the agency discriminated against complainant always

remains with complainant.

As an initial matter, the Commission notes that, because this is an

appeal from an agency 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. See 29 C.F.R. � 1614.405(a).

The Commission concurs with the agency that complainant failed

to establish a prima facie case of race or color discrimination.

Complainant has not shown that others outside of her protected class in

a same or similar situation were treated more favorably than she was.

Even were we to assume that complainant established a prima facie case,

the agency articulated a legitimate, nondiscriminatory reason for

complainant's termination and complainant failed to present evidence

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

actions were mere pretext to mask unlawful discrimination. Complainant's

performance was not acceptable. Moreover, we note that complainant

was a probationary employee, and, as such, she could be discharged

without cause. Complainant challenges the existence of boxing and scheme

standards and states that she was not given a scheme test. Even were

we to accept complainant's allegations as true, the record establishes

that complainant was not only terminated for failing to meet boxing and

scheme standards but also for other reasons as described in her letter

of termination. Complainant therefore failed to show by a preponderance

of the evidence that the agency was motivated by discriminatory animus.

The agency's decision finding no discrimination is AFFIRMED.

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

October 6, 2005

__________________

Date