03990126
03-29-2000
Petitioner, )
Thomas W. Snell v. United States Postal Service
03990126
March 29, 2000
Thomas W. Snell, )
Petitioner, )
) Appeal No. 03990126
v. ) MSPB No. AT-0752-98-0746-I-1
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On July 19, 1999, Thomas W. Snell (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission for review of the
final decision of the Merit Systems Protection Board issued on July 2,
1999, concerning an allegation of discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq. The Board found that the United States Postal Service
(agency) had not engaged in discrimination as alleged by petitioner.
For the following reasons, the Commission concurs with the Board's
decision.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that
petitioner failed to prove that the agency discriminated against him on
the basis of age constitutes a correct interpretation of the applicable
laws, rules, regulations, and policy directives, and is supported by
the record as a whole.
BACKGROUND
Petitioner filed a petition with an MSPB administrative judge alleging, in
pertinent part, that he was the victim of age discrimination when he was
demoted from Manager of Customer Service to Supervisor of Customer Service
effective May 22, 1998. The administrative judge issued a decision
without addressing petitioner's age claim. In a decision rendered on
July 2, 1999, the entire board considered the age claim and found no
discrimination. In it from that decision that the petitioner appeals.
A review of the record indicates that, according to the agency, petitioner
was demoted for several reasons. The agency contended that on October
15, 1997, petitioner was instructed by his supervisor to conduct an
Address Management Systems Audit no later than December 15, 1997 but,
as late as January 22, 1998, there were still twenty-one audits left
to conduct. Another reason articulated by the agency for the demotion
is that petitioner failed, as ordered, to investigate and explain six
items.<1> In its decision, the MSPB AJ determined, and the entire Board
agreed, that petitioner failed to investigate five of the six items.<2>
The agency stated that petitioner was also demoted because he failed to
follow proper procedures concerning the purchasing of goods and supplies.
According to the agency, petitioner improperly purchased (1) PS Forms
3849; (2) PVI labels; (3) post office box number strips; (4) a facsimile
machine; and (5) miscellaneous. The Board determined that there was no
basis in fact with which to sustain the agency's charges that petitioner
improperly purchased items (1), (3), and (4).<3> Finally, the agency
stated that another reason for petitioner's demotion is the deficiencies
that were found in his postal station after an investigation was conducted
on February 9, 1998. Among the stated deficiencies were several pieces
of priority mail located in various "hot cases,"<4> four sleepers<5>
present in the letter case for a particular route, misdelivered mail,
which should have been dispatched through stations throughout the city,
remained in the "hot case," a batch of review mail that was four days old,
approximately twenty feet of carrier overdue, endorsed mail located near
the "hot case," and several routes which contained standard mail without
color coding. The Commission notes that the Board sustained all of the
agency's stated deficiencies.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to the allegation of discrimination based on age constitutes
a corrective interpretation of any applicable law, rule, regulation or
policy directive and is supported by evidence in the record as a whole.
29 C.F.R. �1614.305(c).
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). See also, Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979) (applying McDonnell Douglas to age cases).
For petitioner to prevail, he 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. Id. 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 action. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
petitioner bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of a
prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner 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 petitioner has
established a prima facie case to whether he has demonstrated by
a 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). In this case, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
Specifically, the agency stated that petitioner was demoted for failing
to conduct a required audit in a timely manner, failing to investigate
and submit reports regarding various items, failing to follow proper
procedures regarding the purchasing of goods and supplies, and several
deficiencies concerning the handling of mail at his postal site.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, petitioner now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Petitioner 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)).
We find that petitioner has failed to meet this burden.
To support his claim of age discrimination, the only piece of factual
evidence which petitioner presented was his birthdate (March 23, 1946).
He also contended that he was replaced with a "young" female. He did
not, however, present any evidence indicating that similarly situated
employees outside of his protected groups committed the same violations
as he, but were treated more favorably (i.e., not demoted). For that
reason, we find that he failed to prove that the reasons stated by the
agency for his demotion was an effort to mask discriminatory animus.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the Board's final
decision of no discrimination. The Commission finds that the Board's
decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF RIGHTS - ON APPEAL
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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:
March 29, 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 of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the MSPB and the agency on:
_______________ ________________________________
DATE Equal Employment Assistant
1An explanation as to (1) why petitioner's office failed a HUB test.
A HUB test is an examination of petitioner's ability to distribute
local mail in a timely and proper manner; (2) the completion of street
inspection forms regarding two of his routes; (3) his failure to submit
delivery service information systems (DSIS) in a timely manner; (4)
the agency's inquiry regarding the failure of the Central Forwarding
System, No Record Percentages to exceed its goals; (5) disciplinary
action regarding false alarms; and (6) an employee's complaint regarding
the activities of one of the supervisors that worked for him.
2The MSPB determined that petitioner responded to the agency's inquiry
regarding the failure of the Central Forwarding System; however, the
MSPB found the agency's contention that he did not respond to the inquiry
credible because the response was not addressed to his supervisor.
3Although the "failure to follow proper purchasing procedure" charge
was sustained as a whole, the Board noted that because three of the five
specifications were not sustained, this charge is far less serious than
envisioned by the agency.
4A "hot case" is a box that is designated for each letter carrier for
the purpose of holding mail that must be disseminated on a route on a
particular day.
5A sleeper is a piece of overdue mail.