Vernado McArthur, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 20, 2000
01982183 (E.E.O.C. Dec. 20, 2000)

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.