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.