01A21911
01-22-2003
Timothy F. Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Timothy F. Wilson v. United States Postal Service
01A21911
January 22, 2003
.
Timothy F. Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A21911
Agency No. 4G-760-0223-99
Hearing No. 310-AO-5017X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that during the relevant period, complainant was
employed as a PS-05, Part-time Flexible City Carrier at the agency's
Downtown Station in Lubbock, Texas. Complainant commenced employment on
September 14, 1998, and trained at the Postal Employee Development Center
(PEDC) from September 16, 1998 through September 24, 1998. In addition,
from September 25, 1998 through September 28, 1998 complainant received
on the job training. On October 9, 1998, the agency issued complainant
his thirty day evaluation wherein he received 6 �Unacceptable� marks.
The agency issued complainant a Letter of Termination the same day.
On December 26, 1998, complainant filed an EEO complaint regarding
his removal. On February 18, 1998, complainant and the agency resolved
the EEO complaint. The agency reinstated complainant with stipulations
and a new probationary period effective February 27, 1999. Complainant
attended training at PEDC for a second time from March 2, 1999 through
March 8, 1999. Complainant received on the job training from March 9,
1999 through March 12, 1999. The agency rated complainant on March
30, 1999. He received 3 �Satisfactory� and 3 �Unacceptable� marks.
The record also reflects that on May 1, 1999, complainant sustained a
foot/ankle injury while completing his mail route. Complainant reported
the injury to his first-line supervisor (S1: male, 32 years old, no
known disability, no known prior protected activity) on May 4, 1999.
S1 took complainant to the agency's contract medical clinic where
a doctor diagnosed his condition as a sprained ankle. Complainant
commenced physical therapy the following week, and was given crutches
and an ankle brace. In addition, complainant was put on a limited duty
schedule with a follow-up appointment scheduled for May 7, 1999.
The record also reveals that when complainant went back to the doctor's
office on May 7, 1999, he was informed that he was being released for
full duty. The agency terminated complainant's employment five days
later on May 12, 1999.
Believing that he had been subjected to employment discrimination,
complainant filed a formal EEO complaint on June 22, 1999. He alleged
that the agency had discriminated against him on the bases of sex
(male), age (DOB 10/22/57), and reprisal for prior EEO activity when he
was removed on May 12, 1999. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). At the hearing, the
AJ permitted complainant to introduce testimony to the effect that he
was also discriminated against in violation of the Rehabilitation Act.
Following the hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination based on sex, age or disability, but did establish
a prima facie case of reprisal discrimination. Specifically, the AJ
found that: (1) complainant engaged in prior protected activity; (2)
he suffered an adverse employment action when he was removed; (3) S1
was aware of the prior protected activity; and, (4) there is a causal
connection because the adverse employment action followed complainant's
prior protected activity within a short period of time, i.e., six months.
The AJ also concluded that the agency articulated a legitimate,
nondiscriminatory reasons for removing complainant. In particular,
the AJ found that complainant used considerably more time, both in the
office and on the route, than was allotted. The AJ also found that
complainant made several errors in delivery. The AJ further found that
complainant failed to show improvement during the probationary period.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ deprived him of a full hearing when
she ignored the evidence of discrimination and pretext in the record.
Complainant also contends that the AJ erred when she excluded two
comparison employees whom he wanted to testify. The agency requests
that we affirm its FAD.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We first note that complainant did not raise any object to the exclusion
of any witness when �invite[d] [by the AJ] to state on the record at this
time any comments or any objections that [he had] to any rulings [she
had] made.� Hearing Transcript at 4. In addition, complainant makes
no proffer of the testimony the witnesses would offer. Accordingly,
assuming that the AJ did exclude these witnesses, there is no basis for
finding that the AJ abused her discretion in doing so.
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. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Even assuming
that complainant established a prima facie case of discrimination on
all bases, the Commission agrees with the AJ's finding that the agency
articulated legitimate, nondiscriminatory reasons for terminating
complainant's position. In particular, the Commission finds that even
with the additional training, complainant failed to display the requisite
improvement during his 90-day probationary period. In point of fact,
the agency's on the job instructor (JI) of more than 15 years, trained
complainant during both of his probationary periods. JI testified that,
although complainant seemed to know what to do, he was reluctant to do it.
We find no basis to disturb the AJ's determination that complainant failed
to present sufficient evidence to show that the reasons articulated by
the agency for his removal were a pretext. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
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
January 22, 2003
__________________
Date