Anthony L. DesVignes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionJul 28, 2000
01a02743 (E.E.O.C. Jul. 28, 2000)

01a02743

07-28-2000

Anthony L. DesVignes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.


Anthony L. DesVignes v. USPS

01A02743

July 28, 2000

.

Anthony L. DesVignes,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(N.E./N.Y. Metro Region),

Agency.

Appeal No. 01A02743

Agency No. 4B-010-0017-99

DECISION

Complainant timely filed an appeal from a final agency action concerning

his complaint of unlawful employment discrimination on the basis of

sex (male) 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 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405). For the following reasons, the agency's final

action is AFFIRMED.

ISSUE PRESENTED

The issue on appeal is whether complainant has proven by a preponderance

of the evidence that he was subjected to unlawful employment

discrimination on the basis of sex (male) when, on November 23, 1998,

he was informed that he would not be rehired as a casual mail handler.

BACKGROUND

The record reveals that complainant, a former agency employee, applied

for re-employment on November 3, 1998 as a casual employee. On November

23, 1998, he was informed that he would not be re-hired because of

a discrepancy in regard to his criminal record as disclosed on his

employment application.

After informal attempts to resolve complainant's concerns failed,

complainant filed a formal EEO complaint with the agency on December

21, 1998, alleging that the agency had discriminated against him on the

basis of sex.

Complainant contended that he was not hired because of a 1995 DWI charge

on his record. He alleged that he was discriminated against because he

had been hired previously in June of 1997 despite the DWI on his record.

He alleged that, unlike himself, another male casual employee with a DWI

charge had been re-hired. He also stated that a female casual employee

was terminated because of her criminal record.

The agency argued that its policy is to request and verify criminal

records, and then to disqualify any applicants who have falsified their

applications. The agency contended that complainant was disqualified

because he falsified his application by failing to disclose that in

addition to his DWI charge, he had been charged with attaching wrong

motor vehicle plates on the same date. The agency also argued that the

male casual employee cited by complainant was re-hired because, unlike

complainant, he was honest on his application.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). On January 12, 2000, the AJ issued a decision without a

hearing, finding no discrimination.

Assuming arguendo that complainant could establish a prima facie case

of sex discrimination, the AJ concluded that the agency articulated

a legitimate, nondiscriminatory reason for its action, i.e., that

complainant falsified his employment application. The AJ also stated

that complainant had failed to demonstrate that similarly situated

employees not in his protected class were treated differently or that

his sex was a factor in the agency's decision. On January 18, 2000,

the agency issued a final action implementing the AJ's decision.

CONTENTIONS ON APPEAL

On appeal, complainant argues, through his attorney, that the agency erred

when it did not expand the investigation to include the bases of race

(black) and national origin (Trinidad). Complainant, who is black and

born in Trinidad, argues that the agency should have expanded the bases

of the complaint when he identified a similarly situated employee, a white

male believed to be born in the United States, not in his protected class

who was allegedly treated differently. Specifically, complainant argues

that the comparison employee also had DWIs but was re-hired. He further

contends that the comparison employee falsified his application as well,

and that the agency's reason for the disparate treatment is pretextual.

The agency submits no response to these contentions, and requests that

we affirm its final action.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in Title VII cases is

a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).

Complainant has the initial burden of establishing a prima facie case

of discrimination. A prima facie case of discrimination based on sex

in a non-selection case is established where complainant has produced

sufficient evidence to show that: (1) he was a member of a protected

class; (2) he applied and was qualified for the position; (3) he was not

selected for the position; and (4) he was accorded treatment different

from that given to persons otherwise similarly situated who are not

members of his protected group. See Williams v. Department of Education,

EEOC Request No. 05970561 (August 6, 1998); O'Connor v. Consolidated

Coin Caterers Corp., 517 U.S. 308 (1996); Carver v. Department of the

Interior, EEOC Request No. 05930832 (May 12, 1994).

The burden of production then shifts to the agency to articulate a

legitimate, non-discriminatory reason for the adverse employment action.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252

(1981). If the agency is successful, the burden of production shifts back

to complainant to establish that the agency's proffered explanation is

pretextual, and that the real reason is discrimination or retaliation.

Throughout, complainant retains the burden of proof to establish

discrimination by a preponderance of the evidence. See St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

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. Complainant failed to

establish a prima facie case of discrimination based on sex. Complainant

belongs to a protected class (male), applied and was qualified for the

position of casual mail handler, and was not selected for the position.

However, complainant failed to satisfy the fourth element of the prima

facie case of sex discrimination in that the comparison employee who

was hired was, like complainant, male. While the characteristics of

a comparative employee are not a necessary element of the prima facie

case under Title VII, complainant has presented no other evidence that

gives rise to an inference of sex discrimination. In fact, complainant

himself stated that there was a similarly situated female employee who

was terminated because of her criminal record. The agency confirmed

that this employee was terminated for the same reason that complainant

was not re-hired - falsification of her application. This suggests that

complainant was

treated similarly and not differently from similarly situated persons

who are not members of his protected group.

Even if complainant could establish a prima facie case of sex

discrimination, the AJ correctly found that the agency had articulated

a legitimate, non-discriminatory reason for not hiring complainant.

The record reveals that complainant falsified his application by failing

to disclose another charge in addition to his DWI charge. Complainant

correctly points out that, contrary to the agency's contention, the male

comparison employee who was re-hired also falsified his application

by failing to disclose two additional DWI charges in other districts.

Nevertheless, because the male comparison employee was of the same

protected class as complainant, the Commission finds that complainant

failed to present evidence that the agency's actions were motivated by

discriminatory animus toward his sex. Accordingly, we discern no basis

to disturb the AJ's decision.

In regard to complainant's contentions on appeal that the agency

should have expanded the bases of the investigation to include race and

national origin, a careful review of the record reveals that at no point

during the investigation did complainant indicate that he believed his

race and/or national origin motivated the agency's actions. While a

complainant may amend his or her complaint to add a basis at any point

during the investigation, a complainant may not add a basis on appeal.

See Dragos v. United States Postal Service, EEOC Request No. 05940563

(June 19, 1995).

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 action.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

July 28, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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 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.