03a10003
01-18-2001
Robert Pitchford , Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert Pitchford v. U.S. Postal Service
03A10003
January 18, 2001
.
Robert Pitchford ,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A10003
MSPB Docket No. CH-0752-00-0507-I-1
DECISION
INTRODUCTION
On September 22, 2000, Robert Pitchford (petitioner) timely filed a
petition with the Equal Employment Opportunity Commission (the Commission)
for review of the initial decision of the Merit Systems Protection Board
(MSPB) issued July 19, 2000<1>, concerning his allegations of
discrimination based on race (African-American) and sex (male) in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The petition is governed by 29 C.F.R. �
1614.303 et seq. The MSPB found that the agency had not engaged in
discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated him based on race and sex
when it removed him from his position constitutes a correct interpretation
of the applicable laws, rules, regulations, and policy directives and
is supported by the record as a whole.
BACKGROUND
According to the record, during the month of January 2000, petitioner
used 59.29 hours of emergency annual leave, 10.49 hours of unscheduled
sick leave, and 4.27 hours of emergency leave without pay, and was
absent without leave for .22 of an hour.<2> On February 8, 2000, the
agency issued petitioner a Notice of Proposed Removal for failure to
maintain a regular work schedule.<3> On February 24, 2000, the deciding
official sustained the Notice of Proposed Removal and petitioner was
removed from his position as a Clerk, PS-05, effective March 25, 2000.
Petitioner filed an appeal with the MSPB alleging unlawful employment
discrimination on the bases of race (African-American) and sex (male).
Petitioner stated that management made allowances for a similarly
situated, female employee (comparator) who had leave problems but that
the agency did not work with him so that he could continue working.
He stated further that he did not receive the letter of proposed removal
and that if he had he would have contacted management to investigate
what assistance it could give to prevent his removal.
The agency stated that petitioner failed to submit medical documentation
that indicated a probability of rehabilitation, which was what comparator
submitted. Further, based on the record, the letter of proposed removal
was placed in petitioner's mailbox on February 8, 2000 by a mailhandler
but petitioner was absent from his residence and from work for 17 days
and did not provide a forwarding address for his mail. In addition,
petitioner affirmed that his mailbox was overflowing when he returned
home from his 17-day absence.
After a hearing on the matter, an AJ issued an initial decision finding
that petitioner failed to establish a prima facie case of discrimination
based on race or sex when he did not show that a similarly situated
individual outside of his protected class was treated different. The AJ
affirmed the agency's action. This petition to the Commission followed.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on race and sex
constitutes a correct interpretation of any applicable law, rule,
regulation or policy directive and whether said decision is supported
by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
When a petitioner relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the petitioner to establish a prima facie
case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the petitioner
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for discrimination. McDonnell Douglas, 411 U.S. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
its action ( i.e., petitioner failed to maintain a regular work schedule
and the probability of improvement was low), we may proceed directly to
determining whether petitioner satisfied his burden for showing pretext.
Haas v. Department of Commerce, EEOC Request No. 05970837 (July 7,
1999)(citing U.S. Postal Service Board v. Aikens, 460 U.S. 711, 713-14
(1983)). Petitioner may do this in one of two ways, either directly, by
showing that a discriminatory reason more likely motivated the agency,
or indirectly, by showing that the agency's proffered explanation is
unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981). Essentially, the fact finder must be persuaded by
the petitioner that the agency's articulated reason was false and that
its real reason was discriminatory. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 515 (1993).
Petitioner argued that the agency made allowances for comparator but
that it did not do the same for him. Thus, he stated, the agency's
reason was pretextual.
Based on the record, petitioner did not show that an employee outside
of his race was treated more favorably than he or that an inference of
discrimination based on race existed. Also according to the record,
the comparator submitted medical documentation that the problems causing
her absences would be resolved in the near future. As a result, she was
given a Last Chance Agreement. Petitioner did not submit such medical
documentation to the agency. Petitioner failed to prove discrimination
based on race or sex.
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
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 18, 2001
__________________
Date
1The initial decision became final on August 23, 2000.
2Petitioner indicated that his absences were related to a chronic illness
but he did not divulge the nature of his illness. Petitioner's absences
did not come under the Family and Medical Leave Act because he did not
work the requisite 1250 hours during the immediately preceding year.
3According to the record, during the one year immediately preceding
petitioner's removal, he received five disciplinary actions for irregular
attendance.