Vinod B. Kumar, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (New York Metro Area), Agency.

Equal Employment Opportunity CommissionFeb 14, 2001
01a00054 (E.E.O.C. Feb. 14, 2001)

01a00054

02-14-2001

Vinod B. Kumar, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Metro Area), Agency.


Vinod B. Kumar v. United States Postal Service (New York Metro Area)

01A00054

February 14, 2001

.

Vinod B. Kumar,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(New York Metro Area),

Agency.

Appeal No. 01A00054

Agency No. 1A-119-0001-98

Hearing No. 160-98-8409X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her 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.<1>

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleges she was discriminated against on the basis of national origin

(Asian-Indian) when, on September 3, 1997, her employment was terminated

during her probationary period. For the following reasons, the Commission

AFFIRMS the agency's final decision.

The record reveals that complainant, a part time flexible Mail Processor,

PS-04, at the agency's Mid-Island Processing and Distribution Center,

Melville, New York, filed a formal EEO complaint with the agency on

December 16, 1997, alleging that the agency had discriminated against

her as referenced above. At the conclusion of the investigation,

complainant received a copy of the investigative report and requested

a hearing before an EEOC Administrative Judge (AJ). The AJ issued a

decision without a hearing, however, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of national origin discrimination. Specifically, the AJ found that

complainant failed to demonstrate that similarly situated probationary

employees not in her protected class were treated differently under

similar circumstances, i.e., were given more on-the-job training and

assistance during the same period of time.

The AJ further concluded that the agency articulated a legitimate,

nondiscriminatory reason for terminating complainant, namely, that she did

not demonstrate a sufficient aptitude for the position of Mail Processor

during her probationary period, despite being given ample training and

assistance. The AJ found that complainant did not establish that more

likely than not, the agency's articulated reason was a pretext to mask

unlawful discrimination. In reaching this conclusion, the AJ found that

complainant presented no persuasive evidence that it was her national

origin rather than her failure to perform according to expectations that

resulted in her termination.

The agency's final decision implemented the AJ's decision.

On appeal, complainant contends that the AJ erred when she found her

complaint appropriate for summary judgment, as complainant asserts there

were issues of material facts in dispute which could only be resolved by

a hearing. Among the issues listed by complainant are whether: she was

in fact given sufficient training and assistance; her supervisors were

�honestly dissatisfied with� her performance or acted in �bad faith;�

and she was �properly observed� by her supervisors. The Commission notes

that complainant included these same arguments in her brief opposing the

motion for summary judgment. However, complainant has not proffered any

admissible factual evidence sufficient to demonstrate the existence of a

genuine issue of material fact requiring resolution by the fact-finder.

Celotex v. Catreet, 477 U.S. 317, 322-23 (1986).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence which would tend to establish that the

agency's termination of her was motivated by discriminatory animus toward

complainant's national origin, rather than by her failure to perform

according to agency expectations. We discern no basis to disturb

the AJ's decision. 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 decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

February 14, 2001

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.