01985932
03-17-2000
Terry Kelly, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.
Terry Kelly v. United States Postal Service
01985932
March 17, 2000
Terry Kelly, )
Complainant, )
) Appeal No. 01985932
v. ) Agency No. 1D-234-0013-07
) Hearing No. 120-97-4746X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region) )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black) and sex (female) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges she was discriminated against on November 14, 1996,
when she received a Notice of Removal for failing to account for two
money orders on March 19, 1996. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was employed
as a Distribution and Window Clerk, PS-5, at the agency's Hampton Roads
General Mail Facility in Norfolk, Virginia.
Complainant's immediate supervisor was supervisor A, Manager of Customer
Service, EAS-18. Complainant's second line supervisor was supervisor B,
Manager of Customer Service Operations, EAS-21. The record indicates
that on July 30, 1996, supervisor A contacted the United States Postal
Inspection Service (USPIS) to report that three money order vouchers
from blocks of money orders which had been issued to complainant were
missing. The USPIS undertook an investigation and audit which disclosed
the following:
a. That the two money orders, issued March 19, 1996, were never accounted
for by complainant. Complainant did not list them in her
account for that day or for the next day. She never supplied vouchers
for the two money orders or otherwise provided proof that they had been
paid for.
b. Complainant told investigators that she had sold the money orders to
her husband to pay the electric bill.
c. Complainant's husband denied that he purchased the money orders,
that he never discusses the electric bill with her, and that she pays
the electric bill.
d. The two money orders were issued in the amount of $700.00 and $414.00
in complainant's husband's name and were used to pay complainant's
Virginia Power bill.
e. Complainant had several other shortages in accounting for money orders.
f. Complainant's Virginia Power account had several instances of
lateness including a back bill and late charges in March 1996 amounting
to $1,114.00, the exact amount of the two money orders.
The results of the investigation were produced in an Investigative
Memorandum, dated October 18, 1996, and a Supplemental Investigative
Memorandum, dated October 30, 1996. The record reveals that based on
these Investigative Memorandums, supervisor A concluded that complainant
had used the two money orders for her own personal use without paying
for them. On November 14, 1996, supervisor A issued complainant a Notice
of Removal for failing to account for payment of the money orders under
circumstances where both orders were used to pay complainant's then
outstanding Virginia Power bill.
Complainant stated that she could not understand why six months
passed before she was notified that there was a discrepancy with
her accountability. She further stated that checks are audited on a
regular basis, but that there was never a letter of demand for those
monies cited. Complainant declared that she felt like she had been
treated unfairly, and that five White employees (male and female) who had
shortages in their accountability of funds were not terminated from their
respective positions. Complainant cited Comparison 1 (White female);
Comparison 2 (White female); Comparison 3 (White male); Comparison 4
(White female); and Comparison 5 (White male) for examination.<2>
The record reveals that on June 23, 1997, complainant entered into a Plea
Agreement with the U.S. Attorney for the Eastern District of Virginia.
Complainant admitted that she had embezzled the two money orders in the
amount of $1,114.00.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint(s) on January
24, 1997. By letter dated March 17, 1997, complainant was advised that
her complaint had been accepted for investigation. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
After reviewing the evidence of record, the AJ issued a recommended
decision (RD), dated April 28, 1998, without a hearing finding no
discrimination. The AJ concluded that complainant failed to establish
a prima facie case of race or sex discrimination because she failed
to demonstrate that similarly situated employees not in her protected
classes were treated differently under similar circumstances. The AJ
found that none of complainant's comparisons are similarly situated to
complainant for the following reasons: Comparison 1 was alleged to have
stolen money orders, but she worked under a different supervisor and
Postmaster in a different city; Comparison 2 was alleged to have forged
her supervisor's name to purchase money orders, but she too worked under
a different supervisor and Postmaster; Comparison 3 was alleged to have
been convicted of embezzling funds from a Little League team, but he was
never accused of converting agency funds for personal use; Comparison
4 was not shown to have converted her shortages to her personal use and
she worked under a different supervisor; and Comparison 5 also was not
shown to have converted his shortages to his personal use. The AJ also
found that complainant's evidence did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. The AJ opined that the agency' reason for discharge is
made more credible since complainant pled guilty to embezzling from the
agency, essentially acknowledging that the agency conclusion was correct.
In its FAD, the agency adopted the AJ's RD finding no discrimination.
ANALYSIS
Complainant can establish a prima facie case of race or sex discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, to establish a prima facie case
of discrimination based on a Title VII disparate treatment claim,
complainant must show that she belongs to a statutorily protected
class and that she was accorded treatment different from that accorded
persons otherwise similarly situated who are not members of the class.
Comer v. Federal Deposit Insurance Corporation, Request No. 05940649
(May 31, 1996)(citing Potter v. Goodwill Industries of Cleveland, 518
F.2d 864, 865 (6th Cir. 1975)). In order for two or more employees to be
considered similarly situated for the purpose of creating an inference
of disparate treatment, complainant must show that all of the relevant
aspects of her employment situation are nearly identical to those of
the comparative employees whom she alleges were treated differently.
Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
Here the record shows that complainant is a member of two protected
groups: Black and female. However the Commission finds that complainant
has not established that other employees not of her protected group were
treated differently under similar circumstances. Complainant cited
five White employees for comparison. However, the record shows that
these White comparators were not similarly situated to complainant
for a variety of reasons. Thus, the Commission finds that all of the
relevant aspects of complainant's employment situation are not nearly
identical to those of the comparative employees whom she alleges were
treated differently. In the absence of any other evidence from which
to infer a discriminatory motive, the Commission finds that complainant
has not established a prima facie case of race or sex discrimination.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed
to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's protected groups. As a
result, we discern no basis to disturb the AJ's RD. Therefore, after a
careful review of the record, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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 (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:
March 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The record indicates that these comparators were cited by complainant
in her Prehearing Statements.