01a02928
08-28-2000
Edward Pasco, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, N.E./N.Y. Metro Region, Agency.
Edward Pasco v. United States Postal Service
01A02928
08-28-00
.
Edward Pasco,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
N.E./N.Y. Metro Region,
Agency.
Appeal No. 01A02928
Agency No. 4B020014298
Hearing No. 160-99-8371x
DECISION
INTRODUCTION
Edward Pasco (complainant) initiated a timely appeal on March 11, 2000,
with the Equal Employment Opportunity Commission (the Commission) from
a final agency decision (FAD) concerning his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency correctly determined that
complainant was not discriminated against on the basis of age (DOB:
5/28/55) when he was terminated during his probationary period as an
associate supervisor.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a probationary associate supervisor, EAS-15, at the agency.
On May 16, 1998, complainant was selected to participate in the agency's
Associate Supervisor Program (ASP), subject to the successful completion
of a two week orientation program. Following the completion of the
program, complainant would no longer be on probationary status, and would
receive permanent employment with the agency in a supervisory position.
In order to satisfy the training program requirements, each participant
was required to attain a total score of five points out of an eight
point total on two weekly examinations. Complainant achieved a total
score of four points after receiving a two on each exam administered
at the completion of Week 1 and Week 2. After failing to meet the
requisite program criteria, the agency notified complainant that he
would be separated, effective June 17, 1998.
Believing he was a victim of discrimination, complaint sought EEO
counseling and subsequently filed a complaint on September 1, 1998.
In his complaint, he alleged discrimination on the basis of age (DOB:
5/28/55) when: on June 17, 1998, he was removed during his probationary
period from the Associate Supervisor Training Program, EAS-15, for
failing to meet the requirements of the position.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The agency, however, petitioned for
a decision without a hearing. The AJ ruled on the agency's motion and
rendered a decision without a hearing. In his February 8, 2000 decision,
the AJ found no discrimination and concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, the
AJ found that the complainant failed to meet the requisite five points on
the Week 1 and Week 2 examinations and found that complainant presented
no persuasive evidence that his age was a factor in his termination.
The agency subsequently adopted the AJ's decision in its FAD, dated
February 11, 2000, and implemented a decision finding no discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant makes a number of contentions that will be
addressed below. The agency submits no response to these contentions.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a claim brought under the
Age Discrimination in Employment Act is patterned after the three-step
process set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
In order for complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that reasonably give rise to
an inference of discrimination. McDonnel Douglas, 411 U.S. at 802.
Complainant can establish a prima facie case of discrimination on
the basis of age with regard to his termination where he has produced
sufficient evidence to show that : (1) he was a member of a protected
group; and (2) he was meeting the legitimate expectations of his
employer and was discharged without cause, or that he was singled out
for termination while similarly situated employees not in his protected
group were treated more favorably. Flowers v. Crouch-Walker Corp., 552
F.2d. 1277, 1282-83 (7th Cir. 1977). If the complainant establishes a
prima facie case, then the burden shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its challenged action.
The complainant must then prove that the legitimate reason articulated by
the agency was not its true reason, but was a pretext for discrimination.
Complainant retains the ultimate burden of persuasion, and it is his
obligation to show by a preponderance of the evidence that the agency
acted on a discriminatory basis. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993)(citing U.S. Postal Service Board of Govenors
v. Aikens, 460 U.S. 711, 176 (1983); Texas Department of Community
Affairs v. Burdine, 430 U.S. 248 (1981)).
The preponderance of the evidence indicates that complainant has failed
to satisfy his burden of establishing that he was terminated because of
his age. We find that complainant failed to demonstrate that similarly
situated employees not in his protected class were treated differently
under similar circumstances when complainant was separated from the
ASP. Specifically, complainant has not shown that others outside his
protected class but with similar scores were not removed. Complainant
offers no evidence that younger employees who received failing scores
were not terminated and allowed to complete the program. The Commission
notes that eight of the 16 external appointments invited to continue with
the ASP are members of complainant's protected class, or candidates over
the age of 40.<2> Furthermore, out of the 58 total applicants, two of
the four candidates who failed to successfully complete the orientation
program were younger
than 40. Thus, complainant fails to proffer any evidence which gives
rise to an inference of age discrimination.<3>
Moreover, we conclude that even assuming that complainant established a
prima facie case of age discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions. The Commission finds that
complainant failed to meet the requirements of the position, since he
scored only four points and fell short of reaching the requisite five
point criteria on the Week 1 and Week 2 examinations.
On appeal, complainant contends that he was not given a fair opportunity
to complete the agency's Associate Supervisory Program. Once accepted
into the program, he claims that none of the agency's correspondence
set forth a mandatory requirement to achieve a cumulative score on
examinations as a condition to proceed with the training program.
He refutes the agency in stating that applicants were not informed of
the test prerequisite during any stage of the recruitment process, but
only at the commencement of orientation. Thus, complainant disputes the
program criteria, by claiming that there were no written requirements to
inform applicants that a minimum score of five was necessary to maintain
employment status with the agency. Complainant also challenges the
relevance of the subject material tested and the objectivity in evaluating
test scores. Since he was never given the opportunity to review his
test results or given an agency evaluation of his test deficiencies,
complainant avers that he was wrongfully discriminated against due to
his age.
The Commission, however, finds that all applicants, regardless of
age, were subjected to standard test criteria in order to successfully
complete the training program. The record reflects that out of the 16
external applicants who passed the two exams and were asked to continue
with the program, five were actually older than complainant. We also
note that three of the four applicants removed from the program total
of 58 applicants were younger than the 43 year old complainant. Thus,
the agency did not discriminate against certain applicants according to
age when administering the examination.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's age. We discern no basis
to disturb the AJ's decision. Accordingly, the agency's finding of no
discrimination in the removal of complainant for the position in question
is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
08-28-00
Date
_______________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The pool of applicants for the ASP included both internal candidates
already employed by the agency and external candidates not previously
employed by the agency. Only the internal candidates who failed to meet
the program criteria were given their prior positions within the agency.
The external candidates who failed to satisfactorily complete the program,
such as complainant, were terminated from the agency.
3 We note that this is only one method of establishing a prima facie
case of age discrimination, and that a complainant is not precluded
from such a showing merely because there are no comparative employees.
The qualifying test, however, was administered to all applicants in the
ASP, regardless of age. Thus, we find no other evidence that would give
rise to even an inference of age discrimination. O'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308 (1996); see also Enforcement Guidance
on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002
(September 18, 1996).