Petitioner, )

Equal Employment Opportunity CommissionApr 19, 2000
03a00042 (E.E.O.C. Apr. 19, 2000)

03a00042

04-19-2000

Petitioner, )


Nathaniel Frazier v. United States Postal Service

03A00042

April 19, 2000

Nathaniel Frazier, )

Petitioner, )

) Appeal No. 03A00042

v. ) MSPB No. AT0752990224I1

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

On January 07, 2000, Nathaniel Frazier (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

December 2, 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 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 (Black) and color (light-skinned) constitutes a correct

interpretation of the applicable laws, rules, regulations, and policy

directives, and is supported by the record as a whole.

BACKGROUND

Petitioner, formerly employed by the agency as a Laborer Custodian,

filed a petition with the MSPB alleging, in pertinent part, that he was

the victim of race and color discrimination when he was terminated from

his position. After a hearing, an MSPB administrative judge issued a

finding of no discrimination. In a decision rendered on December 2,

1999, the entire Board upheld the administrative judge's findings.

It is from that decision that petitioner appeals.

A review of the record indicates that, on February 12, 1998, the

agency initiated an investigation, based upon information received

from an anonymous worker, regarding employees stealing compact disks

(CDs) from the Main Post Office in Fort Lauderdale, FL. Approximately

three months later, on May 8, 1998, the anonymous employee provided

additional information. Specifically, this additional information

revealed that several maintenance/custodial employees were involved in

the thefts. In response, agency Postal Inspectors conducted surveillance

observations on the south dock of the Processing and Distribution Center

(P&DC). On May 18, 1998, they observed petitioner segregating the hamper

containing CDs from the other waste hampers. The next day, the CD hamper

was found empty. On June 8, 1998, the inspectors observed three other

employees opening parcels containing CDs, removing the contents, and

placing them in large plastic bags. As the three employees attempted

to exit the P&DC with the CDs, they were arrested.<1>

On June 9, 1998, petitioner was interviewed regarding his role in

the thefts. During the interview, he admitted that he had stolen CDs.

Approximately two and a half months later, the agency issued him a Notice

of Proposed Removal for the improper disposition of dead mail.<2> The

removal became effective on November 28, 1998.

ANALYSIS AND FINDINGS

The Commission must determine whether the decision of the Board regarding

the allegation of discrimination based on race and 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).

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).

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 a

legitimate, nondiscriminatory reason for its action. Specifically, the

agency stated that petitioner was terminated for the improper disposition

of mail.

Because the agency has proffered a legitimate, nondiscriminatory reason

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. In attempting

to prove pretext, petitioner named five employees, all outside of his

protected groups, who were either suspended or not disciplined at all

for violating the sanctity of mail policy. According to him, two of the

five, like him, had stolen from the post office but were not disciplined.

Petitioner did not, however, submit evidence indicating that the agency

was aware of the thefts allegedly committed by the two employees or

that the thefts actually occurred. For that reason, we find that he

failed to prove that the agency's stated reason 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:

April 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 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

1 Evidence in the file does not make clear whether these three employees

were fired. The Commission notes, however, that petitioner did not

list them as comparators. We also note that the agency stated that

these employees were placed on "non-duty/non-pay" status and the file

does contain a Notice of Proposed Removal regarding one of their roles

in the theft.

2 Dead mail is matter deposited in the mail that is or becomes

undeliverable and cannot be returned to the sendor from the last office

of address.