03990094
03-16-2000
Petitioner, )
Randy P. Valencia v. United States Postal Service
03990094
March 16, 2000
Randy P. Valencia, )
Petitioner, )
) Appeal No. 03990094
) MSPB No. SF-0752-98-0500-I-1
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On June 4, 1999, Randy Valencia (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission for review of the
final decision of the Merit Systems Protection Board issued May 7, 1999,
concerning an allegation of discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000 e et seq., and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq.<1> 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
based on race, color, national origin, and disability constitutes a
correct interpretation of the applicable laws, rules, regulations,
and policy directives, and is supported by the record as a whole.
BACKGROUND
A review of the record indicates that petitioner, employed by the
agency as a Maintenance Mechanic, was terminated from the agency on
April 24, 1998. He alleges that his termination was based on his race,
color, national origin, and disability. The agency, however, maintains
that he was removed for inappropriate conduct and for providing false
information on his application for employment.
According to the agency, the inappropriate conduct stemmed from several
comments made by petitioner to various co-workers. For example, on
February 13, 1998, petitioner stated to a co-worker that he was sick
of the way overtime was being given out, and that if he was not given
the next two days off, he would murder someone. That same day, another
co-worker overheard petitioner telling someone that he was very stressed,
and that if he did not go home, he could hurt someone. Also, on February
20, 1998, a co-worker disclosed, during an Inspection Service interview,
that petitioner had personally threatened him and, in the fall of 1997,
had stated that the worst thing that his (petitioner's) supervisor had
done was show him (petitioner) where he (petitioner's supervisor) lived.
To support the charge of inappropriate conduct, the agency relied on
sworn statements obtained from various co-workers. Petitioner denied
communicating a threat to anyone. While acknowledging that he did tell
a co-worker that he sometimes thought about murder, he explained that
his remark was not directed at anyone in particular and that he had no
intentions of carrying out his words.
Regarding the false information on employment application charge,
information provided by the agency indicates that petitioner was convicted
on several criminal charges, some of which were not reported, as required,
on his application for employment. Specifically, the agency presented
evidence which shows that petitioner failed to disclose his arrest on
September 3, 1984, and conviction for burglary and damage to power lines;
his arrest on September 10, 1984, and conviction for disobeying a court
order; his arrest on September 9, 1990, and conviction for disturbing the
peace; and his arrest on December 4, 1990, and conviction for disturbing
the peace. Petitioner conceded that he did not include the convictions
on his application, but contended that his omissions were not willful.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board regarding
the allegation of discrimination based on race, color, national origin,
and disability 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). 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).
Disability Discrimination
As a threshold matter, petitioner must establish that he is a "qualified
individual with a disability" within the meaning of the Rehabilitation
Act. The Act's implementing regulation defines "individual with
disability" as a person who has, has a record of, or is regarded as
having a physical or mental impairment which substantially limits one or
more of that person's major life activities, i.e., caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. See 29 C.F.R. � 1630.2(i).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform a major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
Regarding petitioner's disability, the record is very ambiguous.
There are some documents which indicate that petitioner was seeing
a doctor about stress. None of them, however, explains how or to what
extent his condition adversely affected any of his major life activities.
Therefore, we find insufficient evidence from which to conclude that
petitioner's condition substantially impaired one or more of his major
life activities so as to render him an "individual with a disability"
within the meaning of the Rehabilitation Act. Additionally, there is no
evidence indicating that petitioner had a record of a disability or that
the agency regarded him as disabled. As such, the rest of this decision
will focus on whether or not petitioner was discriminated against on
the bases of race, color, and national origin.
Race, Color, and National Origin
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 removed for two
reasons: (1) inappropriate conduct toward co-workers; and (2) providing
false information on his application for employment.
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. The file does
not contain any information indicating that similarly situated persons
outside of his protected groups were treated more favorably than he.
Petitioner did claim, and witnesses corroborated, that other employees
made threats to co-workers as well. Of the various employees he
named, only two are relevant in this case. The others were employed in
different facilities and/or had allegedly engaged in conduct that was not
substantially similar to petitioner's. Of the relevant employees, one of
them, like petitioner, was Caucasian and white. Moreover, the evidence
of record indicates that upon learning that this employee had engaged
in threatening behavior toward a co-worker, the agency investigated
the matter. During the investigation, the alleged target of the threats
denied having been threatened by anyone. Regarding the second relevant
employee, the file does not contain, nor does the petitioner submit,
information showing his race, color, or national origin. Furthermore,
there is no evidence that either of the relevant employees falsified
their applications for employment. For those reasons, the Commission
finds that the petitioner failed to show that the reasons articulated
by the agency constitute 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.
STATEMENTS 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 16, 2000
____________________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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
1The Rehabilitation Act was amended in 1992 to apply the standards of the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on the
EEOC's website: WWW.EEOC.GOV.