Terry Kelly, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01985932 (E.E.O.C. Mar. 17, 2000)

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.