0120082524
09-14-2009
Edmund J. Kelly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edmund J. Kelly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082524
Agency No. 4J-600-0122-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 7, 2008, final decision concerning
his equal employment opportunity (EEO) complaint alleging 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.
At all relevant times, complainant worked as a full-time City Carrier at
the agency's North Chicago, Illinois Post Office. Complainant was removed
from employment effective June 1, 2007 on a charge of "Unauthorized
delay/Obstruction of Mail." More specifically, complainant was found
to have failed to deliver and discarded "ADVO" cards.
Complainant alleged that the agency discriminated against him on the
basis of race (African American) when he received a Notice of Removal on
March 30, 2007, and subsequently was removed from employment. In support
of his claim, he compared himself to a Clerk (Caucasian) who complainant
alleges was given a Letter of Warning for discarding mail.
Following an investigation, complainant did not respond to the agency's
notice of his right to a hearing or final agency decision. At the
expiration of the regulatory time-frame for election, the agency issued
a final agency decision (FAD), finding no discrimination.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
The analysis of claims, such as complainant's, claiming disparate
treatment is patterned after the three-step scheme announced in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Once the complainant
has established a prima facie case or assuming that s/he does so,
the agency is required to articulate a legitimate, nondiscriminatory
reason for its actions. To prevail, a complainant must demonstrate, by a
preponderance of the evidence, that the agency's reason(s) for its action
was a pretext for discrimination, i.e., that the agency's reason was not
its stated reason and that it acted on the basis of discriminatory animus.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
For purposes of further analysis, we assume, arguendo, but do not find,
that complainant established a prima facie case of discrimination.
The agency explained that complainant violated agency rules and was
terminated for discarding junk mail (the ADVO cards). The agency
further explained that complainant's comparison of himself to the
Clerk who mishandled bulk mail is misplaced, in that the Clerk is not
similarly situated to complainant because the Clerk has a different job,
different supervisor, performed different work, had no prior discipline,
and engaged in different conduct. We find that this explanation meets
the agency's burden to articulate a legitimate, non-discriminatory reason
for dismissing complainant.
In the McDonnell Douglas scheme, once the agency articulated legitimate,
nondiscriminatory reasons for its actions, the ultimate burden of
persuasion returns to the complainant to demonstrate by preponderant
evidence that the reasons given by the agency for its actions are pretext
or a sham or disguise for discrimination. The complainant must show,
by a preponderance of evidence, that the agency more likely than not
was motivated by discriminatory animus rather than its stated reasons.
Absent a showing that the agency's articulated reason was used as a tool
to discriminate against him, complainant cannot prevail. In this case,
complainant has not offered probative evidence to demonstrate pretext.
On appeal, complainant contended that the agency did not present evidence
that complainant actually discarded mail. We note that the essential
inquiry is not whether complainant actually discarded mail, but whether
complainant has adduced evidence to show that the agency's motive in
removing him was discriminatory. We find that complainant adduced no
such evidence.
Complainant further contended that the Commission has applied an
unnecessarily narrow definition of similarly situated employees.
The Commission's long-standing precedent is supported by the Courts and
other administrative agencies. In this matter, we have assumed that
complainant established a prima facie case of discrimination, so the
requirement for comparative employees falls away, and he had no need to
make the showing.
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, 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 as alleged.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
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
September 14, 2009
Date
2
0120082524
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120082524