01a53967
10-06-2005
Faye L. Carpenter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Faye L. Carpenter v. United States Postal Service
01A53967
October 6, 2005
.
Faye L. Carpenter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53967
Agency No. 4C-270-0072-04
DECISION
Complainant filed this appeal with the Commission from the April 5,
2005 agency decision finding no discrimination.
Complainant alleged that the agency discriminated against her on the
bases of race (Caucasian) and color (white) when on February 10, 2004,
she received a letter of separation during her probationary period for
failure to meet scheme and boxing standards.
At the conclusion of the investigation, complainant was provided with a
copy of the Report of Investigation and informed of her right to request
a hearing before an EEOC Administrative Judge (AJ) or, alternatively,
to receive a decision by the agency. Complainant requested a hearing but
subsequently withdrew her request. The AJ issued an order, dated March
31, 2005, cancelling complainant's hearing request and returning the case
to the agency for further processing pursuant to 29 C.F.R. � 1614.110(b).
In its decision finding no discrimination, the agency concluded that
complainant failed to establish a prima facie case of race or color
discrimination, noting that complainant failed to show that anyone not
in her protected classes was treated more favorably than she was in a
similar situation. The agency further concluded that it articulated
a legitimate, nondiscriminatory reason for its action, i.e., that
complainant failed to demonstrate the potential to perform the duties
of her position, failed to meet scheme and boxing standards, and failed
to demonstrate any sense of urgency in any assigned task.
Complainant contends that there were no boxing standards and that two
other employees stated in their affidavits that there were no boxing
standards. She further contends that the national boxing standard that
is contained in the record is actually about the rate of speed in which
mail was to be sorted by a delivery point sequence machine and that she
never operated a delivery point sequence machine.
The record reveals that complainant, a part time flexible clerk in the
Elizabeth City Post Office, began working for the agency on December 13,
2003, and was terminated on February 10, 2004.
The record contains complainant's affidavit. She stated that she did not
know of any other probationary employees who were terminated for similar
reasons or under similar circumstances. She stated that in December 2003,
she heard her supervisor refer to an African-American co-worker (Co-worker
A) as a "dumb nigger." Complainant further stated that she believed
that her supervisor used this word so that complainant would understand
how she was expected to act. She also stated that she fraternized with
African-American co-workers and that throughout her employment, anytime
that there were two African-Americans or herself boxing mail in the same
area, her supervisor would separate them. Complainant stated further
that her supervisor would allow Caucasian co-workers to work together.
Regarding her letter of termination, complainant stated in her affidavit,
that as of the date of the dismissal, she had been given only 36 hours of
the 40 hours allowed to study and learn the scheme. She also stated that
she was never given an official scheme test. Complainant also stated
that there were no boxing standards. Complainant also stated that her
supervisor told her on a daily basis that she had to obtain a certain
score to pass the scheme test and that she felt harassed.
The record contains the two affidavits of complainant's supervisor.
Complainant's supervisor stated that complainant was the first
part-time flexible clerk that she had hired since becoming a supervisor.
She stated further that complainant was extremely slow in completing
her duties and that someone always had to help complainant or finish
the task. Complainant's supervisor also stated that complainant's work
was unacceptable regarding speed, accomplishing tasks efficiently and
timely, and the making of mistakes. She also stated that complainant did
not perform work that met the expectations of the position for which she
was hired. She further stated that complainant was unable to meet time
restraints and frequently made errors, noting that complainant placed
mail at the wrong station for city and rural carriers. Complainant's
supervisor stated that complainant was unable to work with others and took
offense when she corrected complainant's mistakes or directed complainant.
Regarding boxing and scheme standards, complainant's supervisor stated
in her affidavits that the there was a National Standard that all clerks
had to follow. She stated that per hour, all clerks had to sort 5.5 feet
of letters, 6.88 feet of flats, and 325 parcels. Clerks also had to box
10 feet of delivery point sequence letters and 7 feet of flats hourly.
The record contains a copy of the National Standards which are consistent
with the standards detailed in the affidavit of complainant's supervisor.
Regarding the scheme training and scheme testing, complainant's supervisor
stated that complainant was to be given up to 40 hours of scheme training.
She stated that complainant had 36 documented hours of scheme training
and was given an additional three hours of scheme training daily.
She further stated that complainant was given the scheme test and
did not pass. She also stated that the scheme test was not the major
issue for complainant's termination. She stated that complainant was
terminated because she was not able to perform in the manner she needed
to get the job done. Complainant's supervisor also stated that all
the city and rural carriers complained about complainant's slowness.
She stated further that she explained to complainant how to accomplish
her tasks by using shortcuts and gave her suggestions about sorting
small parcels but complainant thought she was harassing her when she
was trying to help complainant get her work up to speed.
Complainant's supervisor denied calling any employee by a demeaning name.
She stated that complainant attempted to cause problems between her
(supervisor) and other employees by accusing her of making slanderous
remarks about Co-worker A. Complainant's supervisor stated that
African-Americans and Caucasians worked together all day performing all
types of functions.
Complainant's supervisor stated that she had terminated three employees,
two White females and one Black female, but that the three had never
actually worked before their termination. She stated that they were
terminated for not showing up on the first day of training, not having
a drug test, and not completing medical forms.
The affidavit of the Postmaster is contained in the record. He stated
that he observed complainant during her 90-day probationary period and
concurred with complainant's supervisor that she should be terminated.
He stated that complainant never demonstrated a sense of urgency
in completing her tasks. The Postmaster stated that all employees
are informed during their 90-day probationary period that they can
be terminated without cause. He stated that he was not aware of any
employees who were treated more favorably than complainant under similar
circumstances. He also stated that he had not terminated anyone else
for the same or similar reasons for which complainant was terminated.
In a 30-day evaluation for the period ending January 12, 2004, complainant
was rated by her supervisor as unsatisfactory on work quantity and
personal conduct. She received a satisfactory rating for work quality,
dependability, work relations and work methods. On the evaluation,
complainant's supervisor noted that complainant was extremely slow in
completing tasks, had to be told what to do, and had to be reminded of
uncompleted tasks. For her evaluation for the period ending February
9, 2004, complainant was rated by her supervisor as unsatisfactory
for work quantity, work quality, work relations, and personal conduct.
Complainant received satisfactory for dependability and work methods.
In a letter, dated March 17, 2004, the Postmaster noted that complainant
was terminated on the fifty-eighth day of her 90-day probationary period
for failure to meet employment standards.
The record contains the February 9, 2004 letter of termination from
complainant's supervisor to complainant. The letter stated that during
complainant's probationary employment, she did not demonstrate the
potential to perform the duties of the position for which she was hired.
The letter also stated that complainant failed to meet scheme and boxing
standards and that even when boxing DPS mail, her work performance
was substandard. The letter further stated that complainant failed to
demonstrate any sense of urgency in any assigned task.
To establish a prima facie case of race, color, or national origin
discrimination, a complainant must show the following: (1) complainant was
a member of the protected class; (2) an adverse action was taken against
complainant; (3) a causal relationship existed between complainant's
membership in the protected class and the adverse action; and (4)
other employees outside of complainant's protected class were treated
differently.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. 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 or she must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).
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 its action, the
factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis to the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990). The burden
of persuasion that the agency discriminated against complainant always
remains with complainant.
As an initial matter, the Commission notes that, because this is an
appeal from an agency decision issued without a hearing pursuant to 29
C.F.R. � 1614.110(b), the agency's decision is subject to de novo review
by the Commission. See 29 C.F.R. � 1614.405(a).
The Commission concurs with the agency that complainant failed
to establish a prima facie case of race or color discrimination.
Complainant has not shown that others outside of her protected class in
a same or similar situation were treated more favorably than she was.
Even were we to assume that complainant established a prima facie case,
the agency articulated a legitimate, nondiscriminatory reason for
complainant's termination and complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were mere pretext to mask unlawful discrimination. Complainant's
performance was not acceptable. Moreover, we note that complainant
was a probationary employee, and, as such, she could be discharged
without cause. Complainant challenges the existence of boxing and scheme
standards and states that she was not given a scheme test. Even were
we to accept complainant's allegations as true, the record establishes
that complainant was not only terminated for failing to meet boxing and
scheme standards but also for other reasons as described in her letter
of termination. Complainant therefore failed to show by a preponderance
of the evidence that the agency was motivated by discriminatory animus.
The agency's decision finding no discrimination is AFFIRMED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 6, 2005
__________________
Date