01973595
03-12-1999
Patrick Jones, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Areas), Agency.
Patrick Jones v. United States Postal Service
01973595
March 12, 1999
Patrick Jones, )
Appellant, )
) Appeal No. 01973595
v. ) Agency No. 4F-967-1002-96
) Hearing No. 370-97-X2013
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Pacific/Western Areas), )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �701 et seq. The Final Agency Decision (FAD) was received on
March 5, 1997. The appeal was filed on April 2, 1997. Accordingly,
the appeal is timely, (see 29 C.F.R. �� 1614.402(a)and 1614.604(b)),
and is accepted in accordance with EEOC Order 960.001.
Appellant filed a formal EEO complaint alleging discrimination on the
bases of physical disability (left shoulder impairment), race (Caucasian),
and color (white), when on September 12, 1995, he was separated from
employment for failure to successfully complete his probationary period.
Following the agency's investigation, a hearing took place before an
administrative judge (AJ) who subsequently issued a recommended decision
of no discrimination. The agency thereafter adopted the AJ's findings
and recommendation. It is from this decision that appellant now appeals.
The record reveals that appellant was hired by the United States
Postal Service (agency) as a Transitional Employee (TE) on April 1,
1995, at the Kailua-Kona, Hawaii Post Office. On June 24, 1995, he
was appointed as a part-time flexible (PTF) Distribution Window Clerk,
subject to satisfactory completion of a ninety-day probationary period.
Appellant alleged that his primary supervisor (S1) (Asian/Japanese,
no disability), subjected him to harsh words, constant criticism, and
unreasonably close scrutiny. In addition, appellant alleged that the
official responsible for his termination (RO) relied on S1's assessment
of his performance in making the decision to end appellant's employment.
The AJ found that appellant presented a prima facie case of disability,
race and color discrimination despite the fact that appellant failed to
present evidence of a similarly situated employee outside of appellant's
protected classes who was treated differently from appellant. The record
reveals that during appellant's probationary period, while he was loading
mail with two Caucasians and a non-Caucasian (C1), S1, observing the
situation, stated, "you mean to tell me three f---king haoles can't
keep up with [C1]?" The AJ took administrative notice that although
the term "haole" originally was applied to non-native Hawaiians,
the term is commonly used today to refer to Caucasians. The AJ found
that while the statement by S1 raises an inference of discrimination,
it did not constitute direct evidence of discrimination since there was
an insufficient nexus between RH's comment and RO's decision to separate
appellant.
The AJ determined that the agency articulated a legitimate,
non-discriminatory reason for its separation of appellant; his failure
to meet the minimum performance requirements. The record reveals that RO
prepared three separate evaluations of appellant during his probationary
period. RO observed appellant's work performance first hand, in addition
to relying on S1's daily reports. Appellant's performance remained
unsatisfactory despite agency attempts to help appellant improve his
performance during the probationary period and agency notification that
it intended to remove appellant if his performance did not improve.
The AJ determined that appellant failed to sufficiently prove pretext.
Specifically, the AJ found that while the record indicated that agency
employees were not treated equally, the evidence did not support finding
such uneven treatment to be based on race, color or disability. The AJ
found that RO evaluated eight employees during their probationary period.
He recommended separation of appellant and C2 (Asian/Filipino, brown,
disability unknown). Of the remaining six employees who were retained,
two were Asian/Pacific Islanders and four were Caucasians. While the
AJ expressed concern regarding S1 use of the term "haole," he noted that
S1 did not make the decision to terminate appellant. Accordingly, since
no other evidence existed which pointed toward unlawful discrimination,
the AJ found the inappropriate statement not enough to support a finding
of unlawful discrimination.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision properly analyzed appellant's
complaint as a disparate treatment claim. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253-56 (1981); Prewitt v. U.S. Postal Service, 662 F.2d 292, 305
n.19 (5th Cir. 1981). The Commission concludes that, in all material
respects, the AJ accurately set forth the facts giving rise to the
complaint and the law applicable to the case. We further find that the
AJ correctly determined that appellant failed to establish
discrimination based on disability, race or color. Since appellant
offered no additional evidence or argument in support of his claim on
appeal, we discern no legal basis to reverse the agency's finding of no
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
3/12/99
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations