Chavis Wright, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W areas), Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01a00758 (E.E.O.C. Mar. 16, 2000)

01a00758

03-16-2000

Chavis Wright, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W areas), Agency.


Chavis Wright, )

Complainant, )

) Appeal No. 01A00758

v. ) Agency No. 4H-330-0255-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W areas), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

concerning his complaint of unlawful employment discrimination on the

basis of race (African American), in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

Complainant alleges he was discriminated against when, on January 23,

1998, he received a Notice of Emergency Placement into Off-Duty Status,

without pay, pending further notice. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS

the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Window Clerk, at the agency's Jose Marti Branch Post Office facility.

Complainant alleged that he was placed into an off duty status without

proof of guilt. He cited one comparative employee (Hispanic male) who

was treated more favorably than he was, but did not provide any further

explanation as to how this individual was treated more favorably than

he was.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on May 20, 1998. At the

conclusion of the investigation, complainant failed to request a hearing,

so the agency issued a final decision (FAD).

The FAD concluded that complainant failed to establish a prima facie case

of race discrimination because he presented no evidence that similarly

situated individuals not in his protected class were treated differently

under similar circumstances. The agency also determined that complainant

failed to prove, by a preponderance of the evidence, that the agency's

reason for its action was pretext for discrimination.

Complainant makes no new contentions on appeal. The agency asks that

we affirm the FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), the Commission agrees with the

agency that complainant failed to establish a prima facie case of race

discrimination because he failed to identify any similarly situated

individuals who were not placed into an off duty status pending a postal

inspection investigation into allegations that they failed to protect

postal funds. Furthermore, the Manager of Customer Services testified

that the individual cited as a comparative by complainant did not work

at complainant's facility.

The Commission finds that complainant failed to present evidence that

proved more likely than not, the agency's articulated reasons for its

actions were a pretext for discrimination. In reaching this conclusion,

we note that the Manager of Customer Services testified that complainant

was issued the Notice of Emergency Placement into an off duty status

because a postal inspector investigation revealed that complainant had

improperly transacted a series of money orders. The postal inspector

corroborated this, and testified that complainant was being investigated

regarding the theft of money orders at the facility. We note complainant

has not disputed the charges, nor has he offered any evidence that the

agency's actions were based on a discriminatory animus towards his race.

Therefore, after a careful review of the record, we affirm the FAD.

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 (S1199)

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:

March 16, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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

________________________

Equal Employment Assistant 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.