01974172
06-24-1999
Melchor Mangoba, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Area), Agency.
Melchor Mangoba, )
Appellant, )
) Appeal No. 01974172
v. ) Agency No. 4J-600-1405-95
) Hearing No. 210-96-6303X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Area), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of national origin
(Phillipines), sex (male), and age (49), in violation of 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 of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. Appellant alleges that he was discriminated against
when he was terminated from his employment during his probationary period,
effective June 15, 1995. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that appellant, a PS-05 Part-Time Flexible Distribution
Clerk, began his service with the agency on March 18, 1995, and was
issued a notice of termination (NT) while in his probationary period,
effective June 15, 1995. Believing he was a victim of discrimination,
appellant sought EEO counseling and, subsequently, filed a formal
complaint on December 26, 1995. At the conclusion of the investigation,
appellant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a Recommended Decision (RD) finding no discrimination.
Employing the analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the AJ concluded that as the agency articulated
legitimate, nondiscriminatory reasons for its action, it was assumed
that appellant demonstrated a prima facie case of discrimination on the
above-stated bases. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that the
NT was issued to appellant due to his poor performance in sorting mail
and his failure to improve after instruction by his supervisors.<1>
The AJ found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In so finding, the AJ credited testimony that appellant
was slower sorting mail than was acceptable, and that his improvement
began only after he received the NT. The agency's FAD adopted the
AJ's RD. Appellant makes no new contentions on appeal, and the agency
requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that appellant
failed to present credible evidence that any of the agency's actions were
motivated by discriminatory animus toward appellant's national origin,
sex or age. We thus discern no basis to disturb the AJ's findings of
no discrimination, which were based on a detailed assessment of the
record and the credibility of the witnesses. See Gathers v. United
States Postal Service, EEOC Request No. 05890894 (November 9, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, after a careful review of
the record, including appellant's contentions on appeal and arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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:
June 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 We note that
an Acting Supervisor testified that due to
appellant's slow work habits in sorting mail,
his co-workers could not perform their jobs.