01986146
04-21-2000
Reuben Hernandez, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency,
Reuben Hernandez v. United States Postal Service
01986146
April 21, 2000
Reuben Hernandez, )
Complainant, )
) Appeal No. 01986146
) Agency No. 4E-852-0007-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Accordingly, the appeal is accepted 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 presented herein is whether the agency discriminated against
complainant on the basis of national origin (Hispanic)<2> when he
was issued a Notice of Removal and terminated from his probationary
employment.
BACKGROUND
Complainant was a probationary Part-Time Letter Carrier at the Downtown
Station, Phoenix, Arizona. The agency notified complainant on September
23, 1997, that he would be terminated because he was rated unsatisfactory
in his work quality and quantity on his 30, 60 and 80 day evaluations.
The agency stated that complainant failed to make necessary improvements.
The Acting Manager (Manager) averred that he terminated complainant
based on documents from three supervisors who each successively monitored
complainant.<3> The documents reveal that complainant was counseled on
a safety violation, mis-deliveries, putting first and second class mail
in a throw-away bin, and leaving mail overnight in an unlocked vehicle.
The Manager stated that he recommended hiring complainant for a craft
other than letter carrier.
Complainant averred that he was not told he mis-delivered mail and
was not retrained. He stated that he passed his first casing test.
Complainant also stated that a white co-worker mis-delivered mail yet
passed his probationary period. The Manager stated that the co-worker
improved. The Investigative Report notes that three Caucasian and one
Black letter carriers were also terminated during their probationary
period while four Hispanic and one Caucasian letter carrier successfully
completed the period.
The agency issued a final decision finding that complainant failed to
prove a prima facie case because he was unable to show that he was treated
differently than similarly situated employees. The agency also found
that, assuming arguendo that complainant stated a prima facie case, the
agency articulated legitimate, nondiscriminatory reasons for its action.
Complainant appealed.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This established order of analysis, 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 articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); See also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., complainant
mis-delivered mail, put mail in a throw away bin, and received poor 30,
60 and 80 day evaluations. The Manager based his decision on the reports
of three supervisors who monitored and counseled complainant.<4>
The burden returns to complainant to demonstrate that the agency's
reason was a pretext for discrimination, that is, that the agency was
more likely motivated by discriminatory reasons. Burdine, 450 U.S. at
253. Complainant provided no evidence in support of his claim that the
agency terminated him based on his national origin. The record reveals
that four Hispanic employees were retained after their probation while
three Caucasian and one Black employees were not. Complainant fails to
prove that he was treated differently than similarly situated employees
based on national origin and has not proven that the agency's articulated
reasons were a pretext for discrimination.
CONCLUSION
Accordingly, the decision of the agency is proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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
April 21, 2000
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
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 Complainant listed race (Hispanic) as the basis for his complaint.
The Commission considers Hispanic to be a national origin rather than
a race.
3 One of the three supervisors monitored complainant for one month
before being detailed to another station. The agency could not locate
her notes in complainant's file, but she spoke with the Manager and
relayed her evaluation.
4 One supervisor who counseled complainant twice on mis-deliveries
averred that he believed complainant would have performed better if he
worked on one rather than several routes during his probationary period.