Patricia A. Bowling v. U.S. Postal Service 01985976 September 6, 2000 . Patricia A. Bowling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. Appeal No. 01985976 Agency No. 4-J-460-1093-96 DECISION INTRODUCTION On July 31, 1998, complainant filed a timely appeal with this Commission from a final agency decision (FAD) pertaining to her complaint of unlawful employment discrimination on the bases of race (African-American) and age (DOB: 3/3/49) in violation of Title VII of the Civil Rights Act of 1964, 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.<1> For the reasons stated herein, the agency's FAD is reversed. ISSUE PRESENTED The issue presented in this appeal is whether complainant established, by a preponderance of the evidence, that the agency discriminated against her based on the above-cited bases when it removed her from her agency position. BACKGROUND Complainant was terminated on January 9, 1996. Believing she was a victim of unlawful employment discrimination on the bases of race (African-American) and age (DOB: 3/3/49), complainant sought EEO counseling and, subsequently, filed a complaint on March 11, 1996. At the conclusion of the complaint's investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). She subsequently withdrew her request for a hearing, therefore, the agency held the matter in abeyance for at least 45 days. When complainant did not indicate her preference for a hearing or a FAD, the agency issued a decision finding no discrimination. The agency found that complainant failed to establish a prima facie case because she could not prove that similarly situated employees outside of her protected classes were treated more favorably. To further support its finding of no discrimination, the FAD also stated that “if the probationary clerk has shown progressive improvement in their scheme tests and close enough to the 95% at the end of their probation, they are retained”<2> This appeal followed. The substantive facts of complainant's claim follow. According to the record, on October 14, 1995, complainant began working as a part-time flexible Distribution Clerk (PTF Clerk) at an Indiana facility of the agency. As a new PTF clerk, complainant was on probation for 80 days, which consisted of a tour of duty and scheme study<3>. Complainant received four “Unacceptable” scores out of six factors on her 30-day evaluation and two “Unacceptable” scores out of six factors on her 60-day and 80-day evaluations. The poor evaluation scores generally related to complainant's work quantity and quality. In addition, during the last three weeks of her probationary period, complainant received scheme scores of 10%, 17%, and 40%. In a letter dated January 2, 1996, the agency informed complainant that she would be removed from service on January 9 due to scheme failure. The letter further stated; “During the 7-day advance notice period, you may attempt to pass the scheme examination [(the exam)] once each day. Should you be successful in passing the examination during the advance notice period, this removal action will be rescinded.” Complainant took the exam on three occasions during the advance notice period -- on January 6, she received 71%; on January 8, she received 87%; and on January 9, she received 34%. According to the record, a Caucasian male who completed the exam on August 3, 1995, received a final score of 71%<4>, and was retained. The record also revealed a Caucasian female who completed the exam on October 16, 1995, received a final score of 87%, and was retained. Both comparison employees (comparators) were under complainant's supervisor (SUPV). 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). Although this analysis was developed in the context of Title VII, it is equally applicable to claims brought under the ADEA. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). In both instances, the initial burden is on the complainant to establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. 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. McDonnell Douglas, 411 U.S. at 804. The burden of persuasion always remains with the complainant. Complainant can establish a prima facie case based on race and age by showing: (1) that she is a member of the protected groups; (2) that she was qualified for the position at issue; (3) that she was discharged; and (4) that similarly situated employees not in her protected groups were treated more favorably. See id. The Commission finds that complainant satisfied all four elements. Complainant was a 46 year old, African-American who was terminated from her position after she received the same exam scores her significantly younger, Caucasian counterparts received on the exam only months earlier but were retained. Now that complainant has established a prima facie case, the agency must articulate some legitimate, nondiscriminatory reason for its action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). According to the record, complainant was terminated for scheme failure. The agency stated that “if the probationary clerk has shown progressive improvement in their scheme test and close enough to the 95% at the end of their probation, they are retained.” We find that the agency has satisfied its burden. Complainant must now show that the agency's articulated reason was mere pretext for discrimination. Id. at 256. She 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. Essentially, the fact finder must be persuaded by the complainant that the agency's articulated reason was false and that the actual reason was discriminatory. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993). After complainant scored 10%, 17%, and 40% out of a required 95% on the exam, the agency issued her a termination letter stating the following: You are hereby notified that you will be removed from the Postal Service on January 9, 1996. During the 7-day advance notice period, you may attempt to pass the scheme examination once each day. Should you be successful in passing the examination during the advance notice period, this removal will be rescinded. Complainant took the exam on January 6, January 8, and January 9, 1996. She received scores of 71%, 87%, and 34% respectively. The agency terminated complainant for scheme failure on January 9. In August 1995, the agency retained a Caucasian male under 40 years of age whose final exam score was 71%. The agency indicated that 71% was not passing, however, the clerk progressively improved from an initial score of 45% and received a score close enough to 95%. In October 1995, the agency retained a Caucasian female under 40 years of age whose final exam score was 87% from an initial score of 38%. Alternatively, Complainant improved from a score of 10% to 87%, and, admittedly, dropped back down to 34%. However, the agency letter only required complainant to attain a passing score during the seven day advance notice period, which, based upon the scores of the comparators who were not removed, she did. The letter did not require her to maintain a passing score through the advance notice period. In fact, it did not indicate that she would have to continue taking the exam after she achieved one passing score. In addition, when the SUPV completed the final evaluation form for the comparator who received a final scheme score of 71%, he noted that although the comparator did not pass he had the potential to learn the scheme. The SUPV's statement was made although the comparator's highest score was 24 points away from the technical score for passing and although it took the comparator 43.15 more hours of training than complainant to receive a score 16 points less than her highest scheme score. Based on the foregoing, the Commission finds that complainant has established that she was discriminated against as alleged. CONCLUSION After a careful review of the record and for the reasons cited above, it is the decision of the Commission to REVERSE the agency's final decision and find that complainant has established that the agency discriminated against her as alleged. ORDER The agency is ORDERED to take the following remedial action: 1. Within ninety (90) calendar days of the date this decision becomes final, the agency shall reinstate the complainant to the part time flexible Distribution Clerk position, PS-05/A position, retroactive to the date in 1996 when complainant was terminated from the position. Complainant shall be provided full seniority and appropriate pay adjustments for any step increases she would have received from 1996 to date, back pay, interest, and all other benefits pursuant to 29 C.F.R. §1614.501. The complainant shall cooperate in the agency's efforts to compute the amount of back pay owed and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amounts owed by the agency, the agency shall issue a check to the complainant for the undisputed amount within thirty (30) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amounts in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission's Decision.” 2. The agency is directed to provide EEO training for complainant's supervisor. This training shall address management's responsibilities with respect to eliminating discrimination in the Federal workplace and all other supervisory and managerial responsibilities under equal employment law. 3. The agency shall post, at the Carmel Post Office, Carmel, Indiana copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer within ten (10) calendar days of the expiration of the posting period. 4. The agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation of the agency's calculation of back pay and other benefits due complainant, and shall include evidence that the corrective actions ordered above have been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 29 C.F.R. §§ 1614.407, 1614.408), and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. § 2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1199) 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). 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 (R1199) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision. In the alternative, you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. 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 September 6, 2000 __________________ Date 1On 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. 2The FAD quoted from the EEO Investigative Affidavit dated April 10, 1997 of complainant's supervisor. Based on the contents of the record, no other reason was given for complainant's termination. 3A “scheme” is a systematic plan for the distribution of mail to its destination as determined by the mail processing functional area. The record reveals that there were 1400 scheme items for training and each probationary PTF Clerk was required to learn one scheme during his/her probationary period. The required score for the scheme at issue herein was 95%. 4According to the record, 71% was not a passing score, however, the agency felt that the PTF clerk showed progressive improvement and got close enough to 95%.