03990089
01-12-2000
Petitioner, )
Donald Smith v. United States Postal Service
03990089
January 12, 2000
Donald Smith, )
Petitioner, )
) Appeal No. 03990089
v. ) MSPB No. DC075297103I1
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On May 26, 1999, petitioner timely filed a petition with the Equal
Employment Opportunity Commission for review of the final decision
of the Merit Systems Protection Board (Board) issued April 22, 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 (African-American) 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 Postmaster, EAS-22, was terminated, effective August 13, 1997.
According to the agency, petitioner was removed from the agency for
improper conduct. Specifically, the agency contended that petitioner had
engaged in inappropriate behavior toward a subordinate female employee,
used an agency gas credit card to purchase gas for his personal vehicle,
and failed to pay for numerous long distance personal telephone calls.
On appeal, petitioner argued that he did not engage in any inappropriate
conduct with a subordinate female employee. He also denied that he
misused his agency gas credit card. He did admit, however, to failing
to pay for some long distance calls but argued that he simply forgot to
reimburse the agency for such calls. Petitioner claims that the penalty
of removal is too harsh and that the agency discriminated against him
on the basis of race.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to the allegation of discrimination based on race constitutes a
correct interpretation of 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
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, as
discussed earlier, the agency stated that petitioner was terminated for
improper conduct with a female subordinate, misusing his agency credit
card, and failing to pay for his long distance telephone calls.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, petitioner now bears
the burden of establishing that the agency's stated reason is 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 that burden.
Regarding the inappropriate conduct with a female subordinate charge
(i.e., taking her out to dinner and paying for her meal and then inviting
her up to his hotel room and kissing her), petitioner contended that as he
was leaving work, the female subordinate asked him to buy her something
to eat because she was hungry and did not have any money with which to
purchase something. According to petitioner, he told her that he was
on his way to a restaurant and that she could join him. And contrary
to the female subordinate's testimony, he denied that she ever visited
his hotel room and that he kissed her. The MSPB administrative judge in
this case found that, regarding this issue, petitioner was not credible.
The agency submitted credible evidence in support of its other two
reasons for terminating petitioner from his job. Regarding the misuse of
credit card infraction, an agency official testified that she witnessed
petitioner using a designated, unmanned gas station to put gas in his
personal vehicle.<1> Agency records and other evidence confirmed the
agency official's testimony. In an attempt to prove that this reason
was a pretext for discrimination, petitioner contended that the agency
official that testified against him did so at the request of the union
and in exchange for a gift. He submitted no evidence, however, to
support this contention.
Regarding the agency's third reason for removal (i.e., failure to pay
for telephone calls), petitioner admitted to having made $1838.60 worth
of personal telephone calls. Although he paid the agency for some of
those telephone calls, the evidence indicates that he still owed the
agency $1571.88. Petitioner admitted that he was responsible for the
telephone calls, claimed that his failure to pay was an oversight,
and stated that he was ready to pay for those calls.
Based on the record before us, we find that petitioner failed to show
that the reasons articulated by the agency were 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 final decision
of the Board 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 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:
Jan. 12, 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:
________________________ __________________________
1 The agency gas credit card gave cardholders access to the designated,
unmanned gas stations.