Flora M. Prowell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity CommissionFeb 2, 2009
0120064510 (E.E.O.C. Feb. 2, 2009)

0120064510

02-02-2009

Flora M. Prowell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.


Flora M. Prowell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Headquarters),

Agency.

Appeal No. 0120064510

Hearing No. 280-2004-00137X

Agency No. HO-0069-02

DECISION

On July 25, 2006, complainant filed an appeal from the agency's June

20, 2006, 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. The appeal is deemed timely and is accepted for the Commission's

de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission AFFIRMS the agency's final order.

BACKGROUND

At the time of the events giving rise to this complaint, complainant

worked as an accounting technician at the agency's Money Order Inquiry

Office in the St. Louis, Missouri Accounting Service Center. The record

reveals that complainant was indicted in federal court on October 19,

2001, and arrested on October 23, 2001, on charges of monetary laundering

and structuring transactions to evade reporting requirements. On January

3, 2002, complainant pleaded guilty to felony money structuring,

and the money laundering charges were dismissed. On March 22, 2002,

complainant was sentenced to five years probation and six months home

confinement.

On April 2, 2002, complainant filed an EEO complaint alleging that she

was discriminated against on the basis of race (African-American) when

on or about January 18, 2002, the agency issued complainant a removal

letter because of her guilty plea to a felony charge of unlawful money

structuring.1

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

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

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. The agency motioned for a decision without a

hearing on November 24, 2004. Complainant responded in opposition to the

agency's motion on December 13, 2004. Over complainant's objections,

the AJ assigned to the case issued a decision without a hearing on

October 29, 2004.

In that decision, the AJ found that there were no material facts in

dispute. The AJ noted that while complainant denied in her response to

the agency's motion for summary judgment that her duties as an accounting

technician involved processing customer requests for replacement

money orders and payment of money orders, complainant affirmed that

these were her work duties in her deposition. The AJ determined that,

despite the discrepancies in complainant's statements, it was undisputed

that complainant had access to money orders as an accounting technician.

The AJ further found that complainant failed to establish that the agency

implemented a policy or practice of terminating employees on the basis

of arrest or conviction of records; instead, the record indicated that

complainant was issued a removal letter because her conduct violated a

variety of agency policies relating to ethical codes and loyalty to the

government. The AJ concluded that complainant had not shown that her

removal was discriminatory because of the disparate impact of a policy

for which no business justification had been shown. The AJ also found

that, even assuming that complainant identified a policy or practice

that precluded the employment of individuals with a criminal conviction,

the agency provided an adequate business justification for its actions.

The AJ further found that complainant failed to establish a prima facie

case of race discrimination under a disparate treatment theory because

she failed to show that similarly situated non-Black employees were

treated more favorably similar circumstances. The agency subsequently

issued a final order adopting the AJ's findings.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the AJ improperly found no

discrimination. Complainant argues that while the charges set forth

in her removal letter are broad, the investigation revealed that her

guilty plea was the reason for her termination and that the agency

has a blanket policy that bars employment of individual with criminal

records. Complainant further argues that the AJ failed to consider

mitigating factors, such as her claim that she did not intentionally

violate the law, her exemplary work performance, and the agency's

failure to provide her with an opportunity to explain her misconduct.

Complainant also contends that she was subjected to discrimination because

the agency allowed a White accounting specialist who used her position

for private gain to retire from the agency instead of terminating her.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

Disparate Impact

In order to establish a prima facie case of discrimination under a

disparate impact analysis, complainant must show that the challenged

practice or policy had a disproportionate impact on members of her

protected class. Specifically, complainant must: (1) identify the specific

practice or policy challenged; (2) show a statistical disparity; and (3)

show that the disparity is linked to the challenged policy or practice.

Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988). The burden is

on the complainant to show that "the facially neutral standard in question

affects those individuals [within the protected group] in a significantly

discriminatory pattern." Dothard v. Rawlinson, 433 U.S. 321, 329 (1977);

see also Gaines v. Department of the Navy, EEOC Petition No. 03990119

(August 31, 2000).

If complainant establishes a prima facie case of disparate impact,

the burden shifts to the agency to provide a business justification

for the challenged action. See Section 105 of the Civil Rights Act of

1991, Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991). Pursuant to

the Civil Rights Act of 1991, once a prima facie case is established,

the agency has the burden of proving that the challenged practice is

job-related and consistent with business necessity. If the agency

satisfies this burden, complainant may nevertheless prevail if she

provides an alternative employment practice that would accomplish the

same goal with a less adverse impact on her protected class.

In the instant case, the agency's Employee Labor Relations Manual Code

of Ethics for Government Service states that "conviction of a violation

of any criminal statute may be grounds for disciplinary action by the

Postal Service." Moreover, the removal letter issued to complainant and

management testimony cited complainant's criminal conviction as the basis

for her termination. Thus, we will assume arguendo that complainant

established that the agency has a policy or practice of terminating

individuals who have criminal convictions.

Complainant submitted data showing that in 2006, African-Americans made up

40.6% of the inmate population of her resident state of Missouri, although

they were only 11.5% of the state population. Complainant contends that

this data satisfies prong 2 of the prima facie disparate impact analysis.

We disagree. We also note complainant's claim that three African-American

co-workers were also removed because of criminal convictions. Again,

we find that this data alone does not amount to a statistical disparity.

See Roosevelt Griffin v. Department of Homeland Security, EEOC Appeal

No. 0120060309 (April 5, 2006). Consequently, we find that complainant

failed to establish a prima facie case of disparate impact.

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case claiming

discrimination is a three-step process as set forth in McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.

For complainant to prevail, she must first establish a prima facie case

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. 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. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence,

that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000).

Assuming that complainant established a prima facie case of race

discrimination, the agency provided legitimate, non-discriminatory reasons

for issuing complainant a removal notice. Specifically, management stated

that complainant was issued the removal notice because she pleaded guilty

to a felony money structuring charge, which undermined her suitability for

her accounting technician position. Complainant contends that instead

of terminating a White accounting specialist who used her position for

private gain, the agency allowed the accounting specialist to retire

from the agency. However, the accounting specialist was not convicted

of a criminal offense, and the accounting specialist had a different

supervisor than complainant. Complainant further argues that the agency

failed to consider mitigating factors in evaluating her conviction.

However, there is no evidence that the agency's actions were unreasonable

in light of the fact that complainant's work involved handling financial

matters, and she was convicted of felony money structuring. We conclude

that complainant failed to provide any evidence from which a reasonable

fact-finder could conclude that the agency's stated reasons for its

actions were pretext for unlawful discrimination. Therefore, we find

that the AJ properly found no discrimination.

CONCLUSION

After a careful review of the record, the Commission finds that the

AJ's decision without a hearing was appropriate, as no genuine issue of

material fact is in dispute. We find that the AJ's decision referenced

the appropriate regulations, policies, and laws. Construing the evidence

to be most favorable to complainant, we conclude that complainant

failed to present evidence that the agency's actions were motivated by

discriminatory animus toward her race. Therefore, we AFFIRM the agency's

final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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, D.C. 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

_February 2, 2009_________________

Date

1 On July 30, 2002, an arbitrator found that the agency did not have just

cause to remove complainant from her position and returned complainant

to her position without back pay.

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0120064510

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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