James Nykaza, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 13, 1999
01974474 (E.E.O.C. Oct. 13, 1999)

01974474

10-13-1999

James Nykaza, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


James Nykaza v. United States Postal Service

01974474

October 13, 1999

James Nykaza, )

Appellant, )

) Appeal No. 01974474

v. ) Agency No. 4-H-327-1206-95

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

)

DECISION

Appellant timely initiated an appeal of a final agency decision

concerning his complaint of unlawful employment discrimination on the

bases of race (Caucasian), national origin (Polish), religion (Catholic),

sex (male), and age (50) in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.

The appeal is accepted in accordance with EEOC Order No. 960.001.

BACKGROUND

The evidence of record reveals that appellant filed a formal EEO complaint

on May 1, 1995, alleging discrimination on the above-referenced bases

when, on February 17, 1995, he was detailed from his position as Manager,

Customer Service and moved to a different postal station. The agency

accepted the complaint for processing and, at the conclusion of its

investigation, issued a final decision finding no discrimination.

This appeal followed.

The central event in this case arose when an agency employee (unknown)

posted a newspaper article referencing appellant's arrest record

regarding spousal abuse. When questioned about the article, appellant

revealed that he had also been arrested for driving under the influence.

Shortly thereafter, he was detailed to another station pending an

investigation into the aforementioned charges. According to the agency,

subsequent investigation uncovered possible improper procedures in the

auditing and issuance of stamp stock along with mishandling of suspense

and trust items in the main stock of the station in which he managed.

ANALYSIS AND FINDINGS

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

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

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). See, Loeb v. Textron, 600 F.2d 1003 (1st

Cir. 1979) (applying McDonnell Douglas to age cases). First, appellant

must 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. Next,

the agency must articulate a legitimate, nondiscriminatory reason(s)

for its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). If the agency is successful, then the appellant

must prove, by a preponderance of the evidence, that the legitimate reason

proffered by the agency was a pretext for discrimination. Id. at 256.

Although the initial inquiry of discrimination in a discrimination case

usually focuses on whether the appellant has established a prima facie

case, following this order of analysis is unnecessary when the agency

has articulated a legitimate, nondiscriminatory reason for its actions.

See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May

31, 1990). In such cases, the inquiry shifts from whether the appellant

has established a prima facie case to whether s/he has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717

(1983).

The Commission finds that the agency has articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the agency

contends that the detail was not a disciplinary move, but rather an

administrative action pending the agency's investigation regarding

appellant's audit procedures and conduct unbecoming of a manager, i.e.,

spousal abuse and driving under the influence.

Because the agency has proffered a legitimate, nondiscriminatory reason

for the alleged discriminatory events, appellant now bears the burden

of establishing that the agency's stated reason is merely a pretext

for discrimination. Shapiro v. Social Security Administration, EEOC

Request No. 05960403 (December 6, 1996). Appellant can do this by

showing that the agency was motivated by a discriminatory reason.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

In the present case, appellant has failed to meet that burden. The only

evidence offered by appellant to support his contention that he was the

victim of unlawful discrimination is the names of three agency employees.

However, agency records reveal that these employees are, like appellant,

White males. Also, unlike appellant, these employees were not employed as

managers, nor were they supervised by the alleged discriminating official.

Based on the foregoing, the Commission finds that appellant's evidence

is insufficient to establish pretext.

CONCLUSION

Therefore, after a careful review of the record, including appellant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we hereby AFFIRM the final

agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

Oct. 13, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations