Edmund J. Kelly, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 14, 2009
0120082524 (E.E.O.C. Sep. 14, 2009)

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

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0120082524

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120082524