01985890
01-19-2000
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).