01973993
05-18-1999
Vincent F. Dattoli, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
Vincent F. Dattoli, )
Appellant, )
) Appeal No. 01973993
v. ) Agency No. 1A-076-1010-95
) Hearing No.170-96-8148X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning his
allegation that the agency violated Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination in
Employment Act (ADEA), as amended, 29 U.S.C. �621 et seq. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960,
as amended.
The issue presented is whether appellant proved, by a preponderance
of the evidence, that he was discriminated against because of his race
(White), national origin (Italian-American), and age (48) when
he was terminated on January 7, 1995, during his probationary period.
At the time of his complaint, appellant had been employed at the agency's
Hackensack, New Jersey Post Office as a Mail Processor, PS-04. Believing
that he was a victim of discrimination, appellant sought EEO counseling
and later filed a formal EEO complaint dated August 3, 1995, wherein he
alleged that he had been discriminated against as described above.
The agency complied with all procedural and regulatory prerequisites,
and upon completion of the investigation, appellant requested a hearing.
Accordingly, on February 6, 1997, the EEOC Administrative Judge (AJ)
issued a Recommended Decision (RD) finding no discrimination on any basis,
and finding credible the testimony of appellant's main supervisor (MS)
who had observed appellant's work over a 60-day period and determined
it to be unsatisfactory. Subsequently, the agency accepted the RD as
its own final decision.
On appeal, appellant contends that his job performance was satisfactory,
and includes letters from co-workers and former employers to that effect.
He notes that the AJ found not credible another reason the agency gave
for terminating him, namely, that he did not get along with co-workers.
In response, the agency cites legal precedents for the proposition that
only management's perception of appellant's job performance is relevant
to determine what motivated the MS's decision to terminate appellant.
The agency also notes that both the MS and another supervisor were not
satisfied with appellant's progress on the job..
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We therefore discern
no basis to disturb the AJ's finding of no discrimination. We note in
particular that disbelief of one of the agency's articulated reasons for
terminating appellant is, without more positive evidence, not enough
to prove discrimination. Rather, appellant must present evidence
that the true reason for his termination was, more likely than not,
motivated by discriminatory animus. St Mary's Honor Center v. Hicks,
113 S.Ct. 2742, 2749. This, appellant has failed to do.
In this regard, the AJ found credible the testimony of appellant's
supervisors that appellant did not make satisfactory progress during
his 60-day probation period. A supervisor's opinion, supported by
facts, and not a co-worker's perception, is the appropriate measure
of whether an employee's performance meets the legitimate expectations
of the employer. See Blow v. Department of the Air Force, EEOC Appeal
No. 01900644 (April 2, 1990), citing Huhn v. Koehring Co., 718 F.2d
239 (7th Cir. 1983). Appellant did not show that this legitimate,
nondiscriminatory reason articulated by the agency for terminating him
was a pretext to mask discrimination.
It is accordingly the decision of the EEOC to AFFIRM the agency's final
decision in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
May 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations