03990142
11-19-1999
Petitioner, )
Jimmy E. Thomas v. United States Postal Service
03990142
November 19, 1999
Jimmy E. Thomas, )
Petitioner, )
) Appeal No. 03990142
v. ) MSPB No. NY-0752-97-0495-I-1
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Jimmy E. Thomas (petitioner) filed a petition with the Equal Employment
Opportunity Commission (the Commission) for review of the Final Order of
the Merit Systems Protection Board (MSPB or the Board) issued on June 8,
1999, concerning an allegation of discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The MSPB found that the United States Postal Service (the agency) had
not engaged in discrimination as alleged by petitioner. For the reasons
that follow the Commission concurs with decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the Board's determination that petitioner
failed to prove that the agency discriminated against him on the basis
of color when it removed him after he had an allegedly racial altercation
with a co-worker is supported by the evidence in the record as a whole.
BACKGROUND
The agency removed petitioner after an investigation of the events of
March 21, 1997. On that date, petitioner was at his worksite when he
and a co-worker had an oral altercation. The co-worker and a witness
alleged that petitioner pulled out what was perceived to be a knife in
order to threaten him.<1> Upon an investigation, the agency decided to
remove petitioner citing the agency's zero tolerance policy on acts and
threats of violence.<2> Petitioner appealed this action to the MSPB,
and a hearing was held on November 13, 1997. The MSPB AJ sustained the
agency's decision and upheld the removal. The AJ found that witnesses
testified that petitioner was holding a knife and threatened his
co-worker.<3> The AJ found that petitioner's intention was to place a
co-worker in the apprehension of fear at the least by simulating the act
of threatening a co-worker with a knife. Therefore, the AJ found that the
agency's penalty of removal was warranted and reasonable in this case.
As to petitioner's allegation of discrimination, the AJ found that he
failed to provide persuasive evidence to rebut the agency's explanation
for its action.
Petitioner has filed a petition for review without substantive comment.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to the allegation of discrimination based on color 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).
Petitioner's allegation of color discrimination constitutes a claim of
disparate treatment which is properly analyzed under the three-tier order
and allocation of proof set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662
F.2d 292 (5th Cir. 1981). Applying this legal standard, petitioner
may establish a prima facie case of color discrimination by showing
that he is in the protected group, and was treated less favorably
than other similarly situated employees outside his protected group.
The absence of comparative evidence may be overcome if petitioner sets
forth some evidence of agency actions from which, if otherwise explained,
an inference of discrimination can be drawn. See EEOC Enforcement
Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
No. 915.002 (September 18, 1996).
The Commission finds that petitioner failed to establish a prima facie
case of color discrimination. Although petitioner established that he is
a member of the protected group by virtue of his color (Black), he failed
to show that he was treated differently than any employee who was charged
with threatening a co-worker with violence. Further, petitioner has not
presented other evidence to support an inference of color discrimination.
Assuming, arguendo, that petitioner established a prima facie case, the
agency articulated a legitimate nondiscriminatory reason for its decision.
The agency stated that it found that petitioner acted in a way that was
in violation of its zero tolerance policy on acts and threats of violence.
Therefore, the Commission finds that the agency has provided a legitimate,
nondiscriminatory reason for its removal of petitioner.
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 final decision
of the MSPB finding 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 PETITIONER'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (W1092)
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 (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:
Nov. 19, 1999
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 agency and the MSPB on:
_________________________
_________________________
1 Petitioner alleges that the co-worker used a racial slur during the
verbal altercation. Upon hearing the slur, petitioner alleges that
he did not pull out a knife but pulled out keys to create a gesture to
replicate the effect of having a knife.
2 A notice of this policy was issued on July 11, 1995 and posted at
petitioner's worksite.
3 A witness at the hearing testified that petitioner approached him to
report of a bias/hate crime and informed the witness about the April 13,
1997 incident. During his account of the events, petitioner stated that
he pulled out a knife in order to defend himself from a co-worker who
had used a racial slur.