Loren Lopez, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01985890 (E.E.O.C. Jan. 19, 2000)

01985890

01-19-2000

Loren Lopez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Loren Lopez, )

Complainant, )

) Appeal No. 01985890

v. ) Agency No. 1-E-802-0040-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the

agency concerning his claim that the agency violated Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<0> The

appeal is accepted by the Commission in accordance with the provisions

of EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

the complainant based on

race (Hispanic), color (brown), national origin (Hispanic), and reprisal

(prior EEO activity) when he was issued a notice of removal in May

1997.

BACKGROUND

The complainant filed a formal complaint in September 1997 in which he

raised the issue set forth above. Following an investigation of the

complaint, the complainant did not request a hearing and the agency

thereafter issued a final decision (FAD) dated June 14, 1998, finding

no discrimination. It is from this decision that the complainant now

appeals.

During the period in question, the complainant was employed as a Bulk Mail

Technician at the agency's Bulk Mail Center (the Facility) in Denver,

Colorado. The record reveals that, in January 1997, a bulk mailing

consisting of union newsletters was placed into the Facility's mail stream

without proper postage. In this regard, it is apparent from the record

that it was the complainant's responsibility to deduct the proper postage

for bulk mailings, including the one in question. After several witnesses

reported what had happened, the complainant's supervisor (the Responsible

Official, RO) contacted the Postal Inspection Service which, pursuant to

an investigation, determined that there was sufficient evidence to find

that the complainant was responsible for violating postal regulations.

The RO thereafter issued the complainant a notice of removal (NOR) dated

May 21, 1997, which states that he was being removed for �Unacceptable

Conduct/Violation of Bulk Mailing Rules and Regulations.�<0>

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. The complainant has

the initial burden of establishing a prima facie case of discrimination.

If the complainant meets this burden, then the burden shifts to the

agency to articulate some legitimate, nondiscriminatory reason for its

challenged action. The complainant must then prove, by a preponderance

of the evidence, that the legitimate reason articulated by the agency

was not its true reason, but was a pretext for discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

The complainant can establish a prima facie case of discrimination

based on race, color, and national origin by showing that: (1) he is

a member of the protected groups; and (2) he was treated differently

than a similarly situated nonmember of his protected groups. See Potter

v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1975).

We find the complainant has not established a prima facie case insofar as

he has not demonstrated that he was treated differently than a similarly

situated nonmember of any of his protected groups.<0>

Regarding the complainant's claim of reprisal, the record reveals that

he filed two EEO complaints

against the RO during the year preceding the action at issue. For that

reason, we find that the complainant is able to establish a prima

facie case based on reprisal. See Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545

F.2d 222 (1st Cir. 1976).

Now that the complainant has established a prima facie case, the agency

has the burden of articulating a legitimate, nondiscriminatory reason

for the challenged action. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 254 (1981). We find that the agency has met this burden.

Specifically, the agency has adduced evidence indicating that the

reason the complainant was issued the NOR was because he violated postal

regulations regarding the handling of bulk mail.

At this point, the complainant bears the burden of establishing that the

agency's articulated reason is a mere pretext for discrimination. The

complainant can do this either directly, by showing that a discriminatory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Id. at 256.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme

Court held that a fact finder is not required, as a matter of law, to

find discrimination whenever it finds that the employer's explanation is

not credible. The Court further made clear that a fact finder may find

discrimination in such circumstances. The critical factor is that a fact

finder must be persuaded by the complainant that it was discrimination

that motivated the employer to act as it did. According to the Court,

it is not sufficient "to disbelieve the employer; the fact finder must

believe the plaintiff's explanation of intentional discrimination." Id. at

519 (emphasis in original).

We find that the complainant has not established pretext. Although

he argues, in effect, that he was not responsible for the bulk mail

violation, we find that there was sufficient evidence for the RO to

reasonably conclude that he was responsible. For that reason, and

because the complainant has offered insufficient evidence to demonstrate

that the issuance of the NOR was in any way related to his prior EEO

activity, we find he has not established that he was retaliated against

based on that activity.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find the

complainant has not established that he was discriminated against as

alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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 (Z1199)

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:

Jan 19, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

01 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all Federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at WWW.EEOC.GOV.

02 The record reveals that the NOR was subsequently reduced to a

letter of warning.

03 Although comparative evidence is only one method of establishing a

prima facie case, the complainant has not presented any other evidence

sufficient to support an inference of discrimination under the alleged

bases. See Enforcement Guidance on O'Connor v. Consolidated Coin Caters

Corp., EEOC Notice 915.002 (September 18, 1996).