0120090901
06-08-2009
Ralph J. Gaschler, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ralph J. Gaschler, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 120090901
Agency No. 4E-800-0251-07
Hearing No. 541-2008-00189X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the decision of the EEOC Administrative Judge in regard to
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
During the period at issue, complainant was employed as a Letter Carrier,
Q-01, at the agency's Wellshire Station in Denver, Colorado. On October
6, 2007, complainant filed the instant formal complaint. Therein,
complainant alleged that the agency discriminated against him on the bases
of race/national origin (Hispanic)1 and disability (alcoholism) when:
on July 1, 2007, he was issued a Notice of Removal dated July 6, 2007,
charging him with Unacceptable Conduct.
The record reflects that in the July 6, 2007 Notice of Removal,
on several dates between April 12, 2007 and June 7, 2007, a Special
Agent from the Office of Inspector General (OIG) observed complainant
while he was at a local restaurant. According to surveillance records
and restaurant receipts, complainant purchased and consumed alcoholic
beverages while on duty between January 19, 2007 through June 7, 2007.
The record further reflects that complainant extended his lunch breaks
while he was at the restaurant.
A review of the Delivery Operations Information System (DOIS) reports
indicated complainant made Managed Service Point (MSP) scans while at
the restaurant, giving the impression he was at a particular address
delivering mail when in fact he was not. On June 7, 2007, complainant was
stopped by a Special Agent of the OIG and an officer of the Denver Police
Department when he was leaving the local restaurant; and was prevented
from driving his vehicle any further that day. A review of the Denver
Police Department log regarding the stop indicated the officer smelled
alcohol on complainant's breath.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ found that complainant failed to
establish a prima facie case of discrimination based on race/national
origin because he did not identify a similar situated individual who
was treated more favorably under similar circumstances. Regarding
complainant's disability, the AJ found that complainant failed to
establish a prima facie case of disability discrimination because he
was not a "qualified" individual with a disability due to his conduct
which clearly violated the agency's policies.
The record reflects that on December 10, 2008, complainant filed an
appeal with the Commission directly from the AJ's October 28, 2008
decision. The record further reflects that the agency did not issue a
final action within 40 days of the AJ's decision. Therefore, the AJ's
decision became the final action pursuant to 29 C.F.R. � 1641.109(i).
This appeal followed.
With regard to complainant's claim of race/national origin discrimination,
we note that in order to prevail in disparate treatment claims such
as these, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The prima
facie inquiry may be dispensed in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for
its conduct. See U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc. 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant establish a prima facie case of
race/national origin, we find that the AJ's finding that the agency
articulated legitimate, nondiscriminatory reasons for its actions is
supported by substantial evidence in the record. We note in his decision,
the AJ determined while complainant may disagree with how management
conducted its investigation or failing to intervene "when management
officials first suspected he was violating policies and procedures by
consuming alcohol on and off duty but prior to returning to work from
his lunch breaks. However, this is insufficient to demonstrate any
evidence that the agency was somehow covering up for race/national origin
discrimination or that complainant's race/national origin played any role
whatsoever in how the agency conducted itself." We find that complainant
failed to offer any evidence to show that the agency's proffered reasons
were a pretext for discrimination. Nothing in the record supports his
assertions that the agency's actions were motivated by race or national
origin. As such, we find that the AJ's finding of no race/national
origin discrimination is supported by substantial evidence in the record.
Moreove, regarding the basis of disability , even if complainant were
able to establish a prima facie case he is unable to establish pretext
for the agency's articulated reason for its action. The record reflects
that when first contacted by a Special Agent of the OIG, complainant
admitted to drinking alcohol on duty while in uniform; driving his
postal vehicle after drinking alcoholic beverages; and making MSP scans
while inside the local restaurant to give the impression his route
was taking longer than it actually did. The record further reflects
that when complainant's supervisor conducted an investigative interview
with complainant concerning drinking alcohol on duty while in uniform,
driving a postal vehicle after drinking alcohol, extending his lunches
and making MSP scans at the local restaurant, complainant admitted that
he was aware that drinking on the job was unacceptable. The agency
issued complainant a Notice of Removal because complainant's actions
were of a serious nature that a removal was warranted.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the AJ's final decision
because we find that the AJ's issuance of a decision without a hearing
was appropriate and a preponderance of the record evidence does not
establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 8, 2009
__________________
Date
1 The record reflects that complainant added the bases of race/national
origin to the instant formal complaint in his affidavit.
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120090901
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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