Desmin J. Walker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 12, 2009
0120093476 (E.E.O.C. Nov. 12, 2009)

0120093476

11-12-2009

Desmin J. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Desmin J. Walker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120093476

Agency No. 4G-760-0148-08

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's July 7, 2009 final decision concerning an equal

employment opportunity (EEO) complaint claiming 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.

During the period at issue, complainant was employed as a City Carrier,

Transitional Employee (non-career) at the agency's Arlington Main Post

Office in Arlington, Texas.

On December 29, 2008, complainant filed the instant formal complaint.

Therein complainant alleged that the agency discriminated against him

on the bases of race (black) and sex (male) when:

on September 5, 2008, he was issued a Notice of Removal, effective

October 5, 2008.

At the conclusion of investigation, complainant was provided with a copy

of the report of the investigation and notice of the right to request

a hearing before an EEOC Administrative Judge or a final decision

within thirty days of receipt of the correspondence. Complainant did

not respond.

On July 7, 2009, the agency issued the instant final decision, finding

no discrimination. The agency determined that complainant did not

establish a prima facie case of race and sex discrimination. The agency

further found that assuming, arguendo, that complainant established a

prima facie case of race and sex discrimination, management nonetheless

articulated legitimate, nondiscriminatory reasons for its actions which

complainant did not show were a pretext for unlawful retaliation.

Complainant's supervisor (S1) stated that he issued complainant a Notice

of Removal dated September 5, 2008, for unsatisfactory performance

for delaying mail. Specifically, S1 stated that on August 23, 2008,

complainant picked up four tubs of Priority Mail parcels that were mailed

from a business, and on Monday, August 25, 2008, a carrier opened up

the back of complainant's vehicle and "the four tubs were still there."

S1 stated that on August 25, 2008, a pre-disciplinary interview was

conducted in which complainant "stated that he had picked up the mail

and had forgot about them."

The record reflects that in the September 5, 2008 Notice of Removal,

complainant was charged with being in violation of the Sections

661.2(q), 665.13 and 665.13 of the Employee and Labor Relations Manual.

Section 661.2(q) states, "[p]rohibition against delay or destruction of

mail or newspaper (18 U.S.C. 1703)." Section 665.13 states "employees

are expected to discharge their assigned duties conscientiously and

effectively." Section 665.13 states "employees must obey the instructions

of their supervisors." The record further reflects that complainant was

also charged with a violation of Handbook M-41, City Delivery Carriers

Duties and Responsibilities, Section 122.14 which states "deposit mail

collected as instructed." Furthermore, S1 stated that complainant's

race and sex were not factors in his determination to remove him from

agency employment.

The Manager, Customer Services (MCS) stated that she was the concurring

official concerning complainant's removal. MCS stated that complainant

was removed from agency employment for delaying mail "by failure

to dispatch collected mail." MCS further stated that she did not

discriminate against complainant based on his race and sex.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor

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

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In the instant case, we find that after a careful review of the record,

the agency articulated legitimate, nondiscriminatory reasons for its

actions. Complainant has not demonstrated that these reasons were a

pretext for discrimination. It is noted that complainant pointed to

several other employees who he claimed engaged in similar misconduct

but were not terminated. First, complainant cited to a supervisor who

was responsible for the office when mail was left at the window unit

over the weekend. However, we agree with the agency's analysis that

this comparator was not similarly situated to complainant because of

the difference in employment status between the career supervisor and

complainant, a non-career line employee. Complainant also named two

female carriers, who were similarly non-career transitional employees.

He alleged that Employee A (black) left outgoing mail in the office, and

Employee B (white) left a collection box opened and mail was stolen from

it, but neither were terminated. However, the supervisor who issued

complainant's notice of removal, as well as the concurring manager,

denied knowledge of these alleged infractions by the two comparators.1

Complainant has not offered evidence to cast doubt on this testimony.

Complainant, on appeal, has provided no persuasive arguments indicating

any improprieties in the agency's findings. Therefore, after a review of

the record in its entirety, including consideration of all statements on

appeal, it is the decision of the Equal Employment Opportunity Commission

to AFFIRM the agency's final decision because the preponderance of the

evidence of record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court

that the Court appoint an attorney to represent you and that the Court

also 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 with the Court 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

November 12, 2009

__________________

Date

1 Another supervisor indicated that Employee A received a letter of

warning for unsatisfactory work performance in August 2008.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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