01994738
01-30-2002
Sammie L. Weatherby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sammie L. Weatherby v. United States Postal Service
01994738
January 30, 2002
.
Sammie L. Weatherby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994738
Agency No. 4H350015897
DECISION
INTRODUCTION
On May 25, 1999, Sammie L. Weatherby (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission) from
the final decision (FAD) of the United States Postal Service (agency),
concerning his 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.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's FAD.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of race (Black), sex (male), age (45), and
disability (foot spur) when, during his probationary period, he was
notified that he would be terminated, effective March 18, 1997.
BACKGROUND
During the relevant time, complainant was a probationary employee in
a Part-Time Flexible Carrier position at a Post Office (the facility)
in Bessemer, Alabama. Complainant began duty on December 21, 1996.
The record reveals that complainant received satisfactory ratings in
his thirty day evaluation; received a rating of unacceptable in Work
Quantity and satisfactory in all other categories in his sixty day
evaluation; and received a rating of unacceptable in Work Quantity, Work
Quality and Work Methods, while receiving a satisfactory rating in the
remaining categories, in his eighty day evaluation. Complainant noted
that at the conclusion of his final evaluation, his supervisor (RMO)
commented that complainant had a �slight limp� in his right leg/foot and
questioned whether the limp could be the problem. On March 17, 1997,
RMO issued a Notice of Removal During Probation for failure to develop
skills necessary to effectively and efficiently complete delivery of mail.
Complainant asserted that other new employees were given more hands
on training and an open line of communication, allowing them to ask
questions. He believed that RMO gave the other employees opportunities
to make mistakes in the learning process and that they were given
positive guidance. RMO asserted that he, in the presence of a union
representative, informed complainant of his deficiencies and demonstrated
how to do the route and how to case mail.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on April 11, 1997.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Initially,
complainant requested a hearing before an AJ. However, complainant
later requested a FAD, and the AJ remanded complainant's file to the
agency on March 17, 1999.
In its FAD dated April 20, 1999, the agency concluded that the record
did not establish that complainant is an individual with a disability
as defined by the Rehabilitation Act because he failed to demonstrate
that his foot spur substantially limited a major life activity, that
he had a record of such impairment, or that he was regarded as having
such an impairment. With respect to the bases of race, sex, or age
discrimination, the agency found that complainant failed to establish
a prima facie case. The agency then assumed arguendo that complainant
had established a prima facie case of race, sex, and age discrimination,
and it offered a legitimate, nondiscriminatory reason for its action.
Specifically, the RMO stated that complainant failed to develop the skills
necessary to effectively and efficiently complete delivery of mail.
The agency found that complainant failed to prove that its reason for
terminating him was a pretext for race, sex, and age discrimination.
On appeal, complainant contends, among other things, that: (1) as a first
time carrier, he never exceeded the time established for completion of a
route by more than five (5) minutes; (2) he was regarded as disabled by
RMO; and (3) his termination denied him the opportunity to work in other
agency positions for which he had been previously considered, reflecting
RMO's abuse of authority. Complainant also included statements from four
(4) former co-workers. Two (2) of the co-workers stated that complainant
delivered his mail in a timely manner and that RMO appeared to harass
complainant. The other 2 co-workers stated that they had never seen
complainant return undelivered mail to the facility. The agency makes
no statement on appeal.
ANALYSIS AND FINDINGS
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 must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, that is, that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
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 the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of race, sex, age, and disability
discrimination. The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its action. Here, the RMO stated
that complainant failed to develop the skills necessary to effectively
and efficiently complete delivery of mail. To support this assertion,
the agency presented the following examples: (1) complainant returned
undelivered mail to the facility; (2) on several occasions complainant
became disoriented and phoned the facility, stating that he had gotten
lost; (3) complainant failed to account for his whereabouts for extended
periods; and (4) complainant's performance was rated unsatisfactory in
several categories in his sixty and eighty day evaluations.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason is unworthy of belief. While
complainant asserted that he did not exceed the time established for
completion of a route by more than 5 minutes, the record reflects that
complainant exceeded the time established on several occasions and
returned undelivered mail to the facility. For example, the record
reflects that on one occasion a 5 hour city route took complainant
seven (7) hours to complete. We note that, while this may not have
been a regular occurrence, the record indicates that RMO expressed his
concerns regarding complainant's performance with a witness present, and
complainant did not dispute the accuracy of RMO's example, but instead
gave explanations. We further note that, while complainant believed
his explanations addressed RMO's concerns, the Commission cannot second
guess an employer's business decisions but can focus only on an employer's
motivation for such decisions. See Burdine, 450 U.S. at 256. In addition,
although 2 of complainant's co-workers stated that complainant delivered
his mail in a timely manner and 2 other co-workers stated that they
had never seen complainant return undelivered mail to the facility,
RMO was better positioned to observe complainant's performance on an
ongoing basis. Finally, complainant contended that his termination
denied him the opportunity to work in other agency positions for which
he had been previously considered, reflecting RMO's abuse of authority.
The record reflects, however, that complainant was not eligible for
transfer into the other positions until he completed eighteen (18)
months in the Carrier position.<2>
Complainant has not met his burden of establishing, by a preponderance
of the evidence, that the agency's legitimate reason was a pretext
for discrimination. Therefore, we find that complainant has failed to
prove that the agency discriminated against him on the bases of race,
sex, age, or disability.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in this
decision, the Commission AFFIRMS the agency's final decision.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
January 30, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Complainant also alleged that RMO harassed him and failed to complete
PS Form 1750, Recommendation for Retention or Rehire. We note, however,
that these actions were not identified as issues in the subject complaint,
and therefore will not be addressed in this decision.