01a55033_r
12-01-2005
Victor M. Guilamo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Victor M. Guilamo v. United States Postal Service
01A55033
December 1, 2005
.
Victor M. Guilamo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55033
Agency No. 4G-700-0137-04
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his formal 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
Complainant was hired as a Part-Time Flexible (PTF) at the agency's
Ferriday Post Office in Ferriday, Louisiana, subject to a 90-day
probationary period.
On December 30, 2004, complainant filed a formal complaint. Therein,
complainant claimed that he was discriminated against on the bases of
race (Hispanic) and national origin (Puerto Rican) when:
(1) on June 15, 2004, his employment was terminated; and
(2) on an unspecified date, he was harassed when the Postmaster
physically put her arms around him, and was threatening in her demeanor.
On February 10, 2005, the agency issued a document identified as �Partial
Acceptance/Partial Dismissal of Formal EEO Complaint.� Therein, the
agency accepted claim (1) for investigation. The agency, however,
dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim
At the conclusion of the investigation of claim (1), complainant was
informed of the right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.<1>
When complainant did not respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its July 11, 2005 FAD, the agency found that complainant failed to
establish a prima facie case of race, color or sex discrimination because
he did not identify any similarly situated employee, outside his protected
classes, who was treated more favorably under similar circumstances.
The agency concluded, however, that even assuming complainant established
a prima facie case on all alleged bases, it nonetheless articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show was pretextual. Further, the agency found that in its
February 10, 2005 partial dismissal, it properly dismissed claim (2)
for failure to state a claim.
Claim (1)
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, 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 has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The evidence supports a determination that he agency articulated
legitimate, non-discriminatory reasons for its action. Complainant was
issued a Notice of Separation during his probationary period, for failure
to meet the performance requirements of his position. The record contains
an affidavit from the Postmaster. Therein, the Postmaster stated that
complainant was terminated because of his unsatisfactory work performance
and failure to follow instructions. The Postmaster further stated that
the agency's actions were prompted by complainant's poor work performance;
and not because of his race, national origin or sex. Specifically, the
Postmaster stated that complainant was counseled on the following dates
"5/03, 5/04, 5/18, 5/25 (30-day evaluation), 5/28, 5/29, 6/02, 6/04, 6/07,
6/08, 6/10, and 6/14 for performance deficiencies of missed deliveries,
customer complaints, failure to follow instructions, and failure to
perform the route within the authorized times." The Postmaster stated
that in addition to the initial training from April 19, 2004 through
April 26, 2004, complainant was "reinstructed on the above deficiencies
and he was given additional training on 4/27, 4/28, 4/29, 5/27, 6/03,
6/04, 6/05, and 6/08." The Postmaster stated that the agency uses a
model to compute the average time a carrier should use to deliver mail
on a specific day, and that complainant "never came within the average."
The Postmaster stated that by his sixtieth day in the probationary
period, complainant did not perform his duties as instructed and did not
demonstrate the capacity or willingness to improve. The Postmaster stated
that complainant's removal during his probationary period was required
for the efficiency and effectiveness of the agency. Furthermore,
the Postmaster stated that she did not discriminate against complainant
based on his race, national origin or sex.
Complainant has not demonstrated that the agency's articulated reasons
were a pretext for discrimination.
Accordingly, the agency's decision finding no discrimination regarding
the matter raised in claim (1) is AFFIRMED.
Claim (2)
Complainant claimed that on an unspecified date, he was harassed when
the Postmaster physically put her arms around him and was threatening
in her demeanor. In a partial dismissal dated February 10, 2005,
the agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim.
The Commission finds that claim (2) fails to state a claim under the EEOC
regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Moreover, a review of the
record reflects that the matter in question is insufficient to support
a claim of harassment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
Accordingly, the agency's dismissal of claim (2) is AFFIRMED.
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
December 1, 2005
__________________
Date
1During the investigation, complainant requested that the complaint be
amended to include sex as a basis, which the agency accepted.