0120080275
05-08-2009
Estate of Jennean Murphy1 Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Estate of Jennean Murphy1
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080275
Agency No. 4J-480-0015-05
Hearing No. 230-2005-00243X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 18, 2007, final order concerning
her 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. Complainant alleged
that the agency discriminated against her on the bases of race (African
American), national origin (African), and color (black)2 when she was
terminated based upon a charge of conduct unbecoming a postal employee.
The record reveals that complainant worked as a window clerk at the
Mt. Clemens Post Office, located in Mt. Clemens, Michigan. On July 8,
2004, and July 19, 2004, complainant, while on duty asked a coworker to
cash personal checks in the amount of $185.00 each. The co-worker did
so using agency funds. Both checks were returned for insufficient funds.
On November 22, 2004, complainant was issued a Notice of Removal, by her
supervisor and the Postmaster. It advised complainant that her postal
employment was being terminated based upon a charge of conduct unbecoming
a postal employee. This action stemmed from the two bounced checks.
The co-worker (white), was issued a Notice of Suspension of 14 days
or Less. It notified the co-worker that she would be suspended for
7 calendar days based upon a charge of "failure to conscientiously and
effectively discharge your duties/improper acceptance of personal checks."
Complainant then filed the instant complaint.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge. The AJ issued a decision after a hearing
finding no discrimination. The AJ found that the agency had articulated
legitimate nondiscriminatory reasons for its actions and complainant had
failed to show that the agency's reasons were pretext for discrimination.
Specifically, the agency explained that, in an attempt to conceal the
transactions, complainant's checks were written in an amount equal to
the price a customer would pay for five rolls of stamps, yet no stamps
were sold. For this reason, complainant's supervisor believed that
her actions constituted fraud and that she was attempting to steal
from the agency. The supervisor also indicated that he believed that
complainant knew that she had insufficient funds to the cover the checks.
He indicated that her actions caused him to lose trust in complainant's
work as a window clerk. He also noted that complainant had not taken
any initiative to repay the agency for the two bounced checks.
The supervisor then explained that the co-worker was only issued a
suspension because he saw a distinction between the offenses committed by
each employee. He indicated that he did not believe that the co-worker
was being directly deceitful. He believed that the co-worker naively
put her trust in someone and that she was gullible enough to believe
that complainant's checks would not bounce after complainant told her
that she had overdraft protection. The supervisor maintained that he
suspended the co-worker in order to emphasize that what she had done,
i.e., manipulate the Point of Sale System to cash complainant's checks
when no postal product had been purchased was serious and wrong. To show
pretext, complainant maintained that check cashing had been done in the
past and that the co-worker had in fact participated in this behavior.
The AJ found that this argument did not show pretext since such behavior
had not occurred during the tenure of the two current management officials
and there was no evidence presented that the co-worker had ever been on
the bad check list.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to affirm the final agency
order. The Commission finds that the agency articulated a legitimate
nondiscriminatory reason for its actions, namely that management believed
that complainant was trying to commit fraud against the agency. We also
agree that complainant failed to show that the agency's reasons were
pretext. In fact, complainant admits in the record that she was aware
that she did not have sufficient funds to cover the checks but indicated
that she relied on the agency's past practice of notifying the individual
once a check had bounced instead of notifying the employee's supervisor.
We also note that management was not aware of employees cashing other
employees' checks and once complainant's situation was discovered, a
"stand-up" talk was given to all employees to advise them that this
would not be tolerated. We find that no evidence was presented which
indicated that complainant's protected bases were considered with regard
to her termination. Accordingly, we find that the Administrative Judge's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
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
05/08/09
__________________
Date
1 When this matter was before the EEOC Administrative Judge (AJ),
complainant was dismissed as a party and the trustee in her then-pending
bankruptcy was substituted as real party in interest.
2 The record reveals that at some point complainant included the basis
of reprisal in her complaint. The AJ granted partial summary judgment
to the agency with respect to that basis.
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0120080275
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013