0120065343
05-20-2008
Thomasroy M. John, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomasroy M. John,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200653431
Agency No. 1C272000406
Hearing No. 430a60097x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 5, 2006 final order concerning
his equal employment opportunity (EEO) complaint alleging 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.
In August 2005, complainant was hired as a Part-time Flexible (PTF)
Clerk at the Greensboro, North Carolina Bulk Mail Center, subject to a
probationary period. On December 5, 2005, complainant filed a formal
EEO complaint alleging that the agency discriminated against him on the
bases of race (Asian) and sex (male) when he was terminated from his
position during his probationary period for failing the keying test.
The evidence of record indicates that as a PTF Clerk, complainant was
required to pass keying training.2 All PTF Clerks are allowed forty hours
to pass the training. On October 5, 2005, at the end of complainant's
forty hours of training, agency management witnesses stated that he had
too many time and error problems to pass the training. After complainant
learned he did not pass, he complained to union officials, who arranged
for him to get an extra 1.5 hours to qualify. However, even after the
extra session, the evidence indicates that complainant failed to pass
the training. As a result, he was discharged effective October 12, 2005.
After complainant's allegations of discrimination were investigated by
the agency, he requested a hearing before an EEOC Administrative Judge
(AJ). On August 31, 2006, the AJ issued a decision by summary judgment in
favor of the agency, finding complainant failed to identify any non-Asian
or female employee who failed keying training and was not terminated.
Moreover, while noting that complainant argued that more men failed
the keying test than women, the AJ concluded that complainant did
not provide adequate evidence, beyond his bare assertion, to support
this claim. In sum, the AJ found that agency management articulated
a legitimate, nondiscriminatory reason for its termination decision,
which complainant failed to prove was a pretext for discrimination.
The agency issued its final order, fully implementing the AJ's decision.
The instant appeal followed.
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 order,
because the AJ's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 20, 2008
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 The Bargaining Unit Qualification Standard indicates that employees
"must demonstrate the ability to key with at least 98% accuracy on the
type of machine, the method of distribution or separation, and at a
minimum rate of distribution or separation appropriate to the position."
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0120065343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036