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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0120064510