Vincent F. Dattoli, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionMay 18, 1999
01973993 (E.E.O.C. May. 18, 1999)

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