01A10215
08-30-2002
Elizabeth A. Shivers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elizabeth A. Shivers v. United States Postal Service
01A10215
August 30, 2002
.
Elizabeth A. Shivers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10215
Agency No. 4G-780-0376-98
Hearing No. 360-99-8756X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
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.; 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.
BACKGROUND
The record reveals that complainant, a Distribution Clerk, PS-05,
at the agency's Bluebonnet Station, San Antonio, TX facility, filed a
formal EEO complaint on September 17, 1998, alleging that the agency had
discriminated against her on the bases of race (Hispanic), national origin
(South America), color (black), sex (female), and age (D.O.B. 8/25/56)
when she was terminated on April 28, 1998.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that the agency articulated a legitimate,
nondiscriminatory reason for its action. The AJ found that complainant
was a probationary employee, and that complainant's supervisor (S1),
who was in charge of the clerks and the carriers at the facility,
terminated complainant because she had two absences during her first
thirty days of probation. S1 testified that dependability, or being at
work one hundred percent of the time, was, in his opinion, critical for
a probationary employee.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that complainant failed to produce sufficient, specific, credible
evidence of pretext. Complainant had submitted that supervisor (S2),
who was subordinate to S1, had verbally abused her, and that S2 was the
person primarily responsible for her termination. However, the AJ found
that S1 presented credible testimony that S1 was solely responsible for
complainant's termination, and that no one, including S2, had input into
S1's decision. The AJ found that S1 believed that an employee who would
miss work on two occasions within the first thirty days of probation would
probably not be a dependable employee. Further, the AJ concluded that S1
based his decision to terminate complainant only upon his consideration
of complainant's attendance, and not upon any discriminatory animus.
The AJ concluded that there was insufficient evidence to establish that
complainant was discriminated against with regard to her termination.
The agency's final order implemented the AJ's decision.
CONTENTIONS ON APPEAL
Neither complainant nor the agency made any contentions on appeal.
ANALYSIS AND FINDINGS
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.
The agency's rules provided that the agency shall have the right to
separate from its employ any probationary employee at any time during
the probationary period. The Commission has long recognized that
an employer has the discretion to determine how best to manage its
operations and may make decisions on any basis except a basis that is
unlawful under the discrimination statutes. See Nix v. WLCY Radio/Rayhall
Communications, 738 F.2d 1181 (11th Cir. 1984). The reasonableness
of the employer's decision may, of course, be probative of whether
it is pretext. The Commission recognizes that the trier of fact must
understand that the focus is to be on the employer's motivation, not
its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6
(1st Cir. 1979). While S1's determination to terminate based upon two
absences may appear unreasonable, complainant has failed to show that
his action was a pretext for retaliation. Further, the AJ found that
after a careful review of the evidence that complainant had failed to
prove that she was discriminated against. We conclude that this finding
is based on substantial evidence, i.e.,
the testimony of the responsible official.
CONCLUSION
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. We note
that complainant failed to present sufficient evidence that the agency's
action was motivated by discriminatory animus toward complainant's race,
national origin, color, sex, and age. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
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
August 30, 2002
Date