01982183
12-20-2000
Vernado McArthur, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Vernado McArthur v. USPS
01982183
December 20, 2000
.
Vernado McArthur,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01982183
Agency No. 1H331111794
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning her complaint of unlawful 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<2>
Complainant alleged that she was discriminated against based on race
(Black), sex (female), and disability (back injury) when she was given a
pre-disciplinary interview for alleged falsification of medical records,
which resulted in a Notice of Removal on April 29, 1994, and subsequent
termination on July 3, 1994.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a full-time manual clerk at the agency's Miami General Mail Facility,
Miami, FL. Believing she was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on October
5, 1994. At the conclusion of the investigation, complainant was informed
of her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant made
a timely request for hearing, but withdrew from the hearing proceedings
on October 1, 1997, requesting that the agency issue a final decision.
The agency issued a final decision on December 18, 1997.
On March 8, 1994, two Postal Inspectors requested to interview complainant
regarding an alleged on-the-job injury which purportedly occurred on April
7, 1993.<3> Shortly after the interview began, complainant requested the
presence of a shop steward. The steward advised against talking with the
inspectors, the interview was concluded, and complainant was placed on
administrative leave. By letter dated April 29, 1994, complainant was
issued a Notice of Removal, charging her with falsification of medical
documents, and leading to her ultimate termination.
Before the agency, complainant contended that she did not falsify any
medical records. Complainant also contended that there were three
similarly situated white (Caucasian) female comparators, who were not
removed, although they purportedly falsified agency records.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case, and thus that complainant failed to show that
she was unlawfully discriminated against. First, the agency found
that evidence, within the file, as well as affidavits obtained by the
postal inspectors from the medical personnel involved, established that
complainant falsified the relevant medical records, relating to the
alleged on-the-job injury. Second, the agency found that there were
no similarly situated comparators. The agency pointed out that two of
the Caucasian comparators were removed for falsification of records,
and that one Caucasian comparator was never accused or charged with
falsification of documents. The agency also noted that complainant's
removal was upheld by an arbitrator in a decision issued September 10,
1995. The agency concluded that complainant's removal for falsification
of medical documentation was warranted.
On appeal, complainant contends that the comparator, who, in the
FAD, was found not involved in disciplinary action was in fact a
similarly-situated comparator. Complainant also lists a number of
other alleged similarly-situated comparators, who allegedly engaged
in falsification of documents, but were nevertheless reinstated.
Complainant also suggests that the alleged falsification of medical
documents was due to a �misunderstanding.� Finally, complainant submits
that the arbitration decision is suspect, because her representative
advised her not to offer any �dialogue� in the proceeding, and none was
therefore offered. The agency did not respond to the appeal.<4>
FINDINGS AND ANALYSIS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Prewitt v. USPS, 662 F.2d 292
(5th Cir. 1981); Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). A complainant 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 reason
was a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
In order to establish a prima facie case of discrimination, complainant
may show that she is a member of a protected group, and that she was
treated less favorably than other similarly situated employees outside
her protected group. See Potter v. Goodwill Industries of Cleveland,
518 F.2d 864, 865 (6th Cir. 1975). Complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference of
discrimination can be drawn. Furnco, 438 U.S. at 576.
The Commission agrees with the agency that complainant failed to establish
a prima facie case of discrimination, because she did not show she was
treated less favorably than other similarly situated employees outside
her protected group and did not set forth any other evidence of acts from
which discrimination might be inferred. In reaching this conclusion,
we note that complainant assertedly refers to the similarly-situated
comparator's request for disciplinary action, in which, according to
complainant, the Caucasian comparator falsified documents, but was not
removed. However, complainant did not submit the document for the record.
Complainant suggests that such documentation exists, and thus it is
her responsibility to proffer the document or otherwise satisfactorily
explain why the document is unavailable. Alternatively, the complainant
could have proferred testimony from the named comparator or otherwise
explained why the comparator was unavailable. Since the agency has
denied that the alleged similarly-situated Caucasian comparator engaged
in falsification of records or other wrongdoing, we cannot require the
agency to prove a negative.
Complainant does not dispute the FAD's finding that complainant's
other two alleged similarly situated comparators were not, in fact,
similarly situated, since they were removed from their positions.
Although complainant, on appeal, suggests there were even more
similarly-situated comparators, she gives no supporting documentation
or evidence for the Commission to evaluate her contention. Even taking
complainant's allegations as true, some of the comparators are not
similarly situated, since they were not employed at the Miami General
Facility or because falsification of documents was not even at issue in
the discipline given. Furthermore, some of the comparators were alleged
to have falsified documents, and the agency, upon further investigation,
may have found that they did not falsify documents, and thus reinstated
them. While complainant submits that the alleged falsification of
documents was a �misunderstanding,� she does not elaborate where there
was a misunderstanding and how the misunderstanding may have developed.
With respect to the arbitration decision, complainant does not explain
how she would correct the arbitrator's findings, especially with respect
to falsification of records issues.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 20, 2000
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3The alleged injury involved an incident, in which complainant witnessed
a postal police officer pursue a postal employee for purposes of
apprehension. Complainant assertedly was traumatized by the incident with
subsequent severe chest and back pain, and headaches. Complainant filed
workmen's compensation claims, which were denied on September 25, 1993.
4Complainant does not raise any disability issues on appeal. Accordingly,
disability under the Rehabilitation Act will not be addressed on appeal.