01986604
03-29-2000
Vickey C. Roberts, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vickey C. Roberts v. United States Postal Service
01986604
March 29, 2000
Vickey C. Roberts, )
Complainant, )
) Appeal No. 01986604
v. ) Agency No. 4D-270-0153-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female) and disability (physical) in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq.<1> For the reasons stated herein, the agency's FAD is affirmed.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against her based on the above factors.
BACKGROUND
During the period in question, complainant was employed as a Part
Time Flexible City Carrier (PTF Carrier), Grade 05, in a North Carolina
facility of the agency. Believing she was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint
alleging that the agency discriminated against her based on sex (female)
and disability (physical) when it terminated her employment during her
probationary period.
Complainant stated that the agency's action was discriminatory because
a male carrier (E-1) was treated more favorably than she, she was not
properly trained, and two of the periodic evaluations conducted during
her probationary period were while she was suffering with an on-the-job
injury<2>.
Complainant's supervisor (C-1) stated that he terminated complainant
due to her unsatisfactory performance during her probationary period.
C-1 specifically indicated that complainant did not make reasonable
progress towards the efficient and timely delivery of mail, she failed
to report an accident in a timely manner, she failed to follow safety
and security regulations when using her agency-assigned vehicle, and she
failed to take reasonable shortcuts in the delivery of mail. He added
that complainant consistently received an unsatisfactory score for work
quantity and quality during her periodic evaluations.
At the conclusion of the complaint's investigation, the agency notified
complainant of her right to a hearing before an EEOC administrative judge
or an immediate FAD. The agency issued a FAD finding no discrimination
based on sex or disability. This appeal followed.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext for
its discrimination. Id. at 804. Although this analysis was developed
in the context of Title VII, it is equally applicable to claims brought
under the Rehabilitation Act. Prewitt v. U.S. Postal Service, 662 F.2d
292 (5th Cir. 1981).
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, we may proceed directly to determining whether complainant
satisfied her burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
For purposes of this analysis, we shall assume complainant is a person
with a disability. The agency indicated that it terminated complainant
for unsatisfactory performance during her probationary period. C-1 stated
that complainant's unsatisfactory performance included her inability
to make reasonable progress towards the efficient and timely delivery
of mail, her failure to timely report an accident, her failure to
follow safety and security regulations when using an agency vehicle,
and her failure to take reasonable shortcuts in the delivery of mail.
C-1 added that complainant's poor work quantity and quality were conveyed
in the periodic evaluations conducted prior to her termination.
Complainant stated that the agency's actual reason was discriminatory
because E-1 who was a similarly situated person outside of her protected
sex class was treated more favorably than she, the agency did not properly
train her, and two of her periodic evaluations were conducted while she
was on restricted duty from an on-the-job-injury.
The record revealed that E-1 was a casual appointment, which did not
require a probationary period, rather than a career appointment, like
complainant, which served a 90 day probationary period. The record also
indicated that complainant was provided training, although admittedly by
her coworkers rather than her supervisor. The record further revealed
that the agency's employment manual indicated that periods of absence
from work were counted toward completion of the probationary period.
The Commission finds that implicit in this employment manual provision is
that placement on restricted duty would also be counted toward completion
of the probationary period. Accordingly, the complainant failed to
prove discrimination based on sex or disability.
CONCLUSION
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. 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 finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
March 29, 2000
____________________________
Date Carlton M. 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:
_______________ __________________________
Date
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 On May 27, 1997, complainant suffered a work-related injury to her left
foot, which placed her on restricted duty until July 10. The agency
conducted a periodic evaluation of complainant on June 8, 1997, July 8,
1997, and July 28, 1997. These evaluations were the 30 day evaluation,
the 60 day evaluation, and the 80 day evaluation, respectively.