0120064156
03-26-2008
Steven M. Feinberg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven M. Feinberg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200641561
Agency No. 4C150001906
DECISION
On June 26, 2006, complainant filed an appeal from the agency's June 22,
2006 final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission affirms the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
in his probationary period as a part-time flexible city carrier at the
agency's Monroeville, Pennsylvania facility. Complainant contacted
an EEO Counselor and filed a formal EEO complaint on January 13, 2006,
alleging that he was discriminated against on the bases of his religion
(Jewish), disability (learning, musculoskeletal), and age (D.O.B. June
5, 1964) when on December 2, 2005, management terminated him during his
probationary period.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision (FAD) pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that he was
subjected to discrimination as alleged. The FAD found that assuming,
arguendo, complainant established a prima facie case of religion,
disability and age discrimination, the agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the FAD found that complainant was terminated for failure to get along
with others, and failure to follow instructions. The FAD concluded that
complainant failed to show that the agency's articulated reasons were a
pretext for unlawful discrimination. Complainant makes no new arguments
on appeal.
STANDARD OF REVIEW
As this is an appeal from a 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. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Here, we find that assuming, arguendo, complainant established a
prima facie case of religion, disability, and age discrimination,
the agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. The record shows that complainant began
work on October 15, 2005, and was in his probationary period at the
time of his termination on December 2, 2005. The record also shows
that the notice of termination, signed by the Manager of complainant's
facility, states that complainant was terminated for "failure to get
along with others" and "failure to follow instructions." (Report of
Investigation, Exhibit 11). The Supervisor, Customer Service (S1)
stated in her affidavit testimony that complainant had been given several
discussions regarding his argumentative and confrontational behavior, as
well as his performance deficiencies. (R.O.I., Affidavit B). S1 also
stated that complainant was given an "unsatisfactory" rating on his
30-day evaluation, and that he "not only argued with fellow carriers,
but he argued with [her and the Manager of complainant's facility] when
[they] corrected him on incorrect procedures." Id. S1 went on to state
that she included the union steward in a few of the discussions with
complainant due to his confrontational behavior. The Manager stated
that she and S1 agreed that complainant should be terminated because of
his behavior and attitude, and that "customers were calling and coming
to [her] door to complain" about complainant. (R.O.I., Affidavit C).
The record also contains statements from two of complainant's co-workers,
documenting incidents when they had witnessed complainant engaging in
behavior during his training period that they considered confrontational.
(R.O.I., Ex. 8; 9). We find that complainant has proffered no evidence
to show that the agency's articulated reasons for his termination are a
pretext for unlawful religion, disability or age based discrimination.
Accordingly, we affirm the FAD.
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
March 26, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120064156
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064156