05A10237
05-02-2001
Vernado McArthur , Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.
Vernado McArthur v. United States Postal Service
05A10237
May 2, 2001
.
Vernado McArthur ,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 05A10237
Appeal No. 01982183
Agency No. 1H331111794
DENIAL OF REQUEST FOR RECONSIDERATION
The Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Vernado
McArthur v. United States Postal Service, EEOC Appeal No. 01982183
(December 20, 2001). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
Complainant timely initiated an appeal from a final agency decision
(FAD),<1> 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.<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.
The Commission affirmed the FAD.
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. 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 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 contended that the comparator, who, in the
FAD, was found not involved in disciplinary action was in fact a
similarly-situated comparator. Complainant also listed a number of
other alleged similarly-situated comparators, who allegedly engaged
in falsification of documents, but were nevertheless reinstated.
Complainant also suggested that the falsification of medical documents,
she was accused of, was due to a �misunderstanding.� Finally, complainant
submitted that the arbitration decision was 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.
The Commission agreed 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. The Commission especially
emphasized its concerns with complainant's failure to provide evidence
of her purported similarly situated employees.
On reconsideration, complainant generally argues that there are valid
comparators. In addition, complainant submits that the problem of
alleged falsification of documents stemmed from the agency's failure
to supply her with the appropriate rules, regulations, and forms, and
that her failure was due to a lack of knowledge of her responsibility.
Finally, complainant argues that the arbitration decision was flawed,
because it lacked due process.<4>
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. � 1614.405(b) are met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that
the Commission's scope of review on a request to reconsider is limited.
Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989).
We again conclude that complainant failed to establish a prima facie
case of discrimination. Although complainant generally argues that she
showed valid comparators, she still does not provide concrete evidence
establishing such. The Commission's decision, on appeal, detailed its
concerns with complainant's lack of such evidence. In her request for
reconsideration, complainant has not addressed those concerns.<5>
Although complainant presents some specific comparators, we fail to
see how they support complainant's view. Complainant's Exhibit No. 6
shows a comparative matrix of four individuals, including complainant.
With respect to one of the individuals (Caucasian, female, disability
unknown), there is no indication of the conduct charged or the action
taken. With respect to the two other individuals (Caucasian, female,
no disability), it is indicated that there was removal for falsification
of records for one individual and removal for affixing improper amounts
on postage meter strips in order to gain Postal funds for the second
individual.
In addition, complainant submits that the problem stemmed from the
agency's failure to supply her with the rules, regulations, and forms,
and that her failure was due to a lack of knowledge of her responsibility.
We do not find this argument persuasive, given its timing at this juncture
of the proceeding. Such argument would have been better timed at the
very earliest stages of the controversy. In any event, complainant does
not explain with any specificity how such alleged failure by the agency
contributed to the complainant's falsification of records alleged by
the agency.
Finally, complainant argues that the arbitration decision against her was
flawed, because it lacked due process. The arbitration decision was not
a determinative factor in the Commission's decision affirming the FAD.
The record, even leaving the arbitration decision aside, supports the
agency's action.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reason for its
action, i.e., complainant's falsification of medical records, was a
pretext for discrimination.
CONCLUSION
After a review of the Complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01982183 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 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.
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
May 2, 2001
Date
1 Complainant did not request a hearing before an EEOC Administrative
Law Judge, but instead requested that the agency issue a FAD.
2 The 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.
3The alleged injury involved an incident, in which complainant witnessed
a postal police officer pursue a postal employee for purposes of
apprehension. Complainant allegedly 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 did not raise any disability issues on appeal or on
reconsideration. Accordingly, disability under the Rehabilitation Act
will not be addressed.
5 In order to be considered similarly situated, the persons with whom the
complainant is comparing herself/himself must be similar in substantially
all aspects, so that it would be expected that they would be treated in
the same manner. Murray v. Thistledown Racing Club, Inc., 770 F.2d 63,
68 (6th Cir. 1985); Majahad v. Department of Labor, 915 F. Supp. 499
(D.C. MA 1996).
Therefore, in making an appropriate comparison, the comparator must
have been supervised by the same individual as the complainant.
Alexander v. Gardner-Denver Co., 519 F.2d 503 (10th Cir. 1975)(action
of a supervisor other than the one who supervised the plaintiff was
insufficient evidence of discrimination). The discipline should also have
transpired during roughly the same period of time. Allen v. Department
of the Navy, EEOC Request No. 05900539 (June 14, 1990); Kalivretenos
v. United States Postal Service, EEOC Request No. 05890884 (October 13,
1989); Prichard v. United States Postal Service, EEOC Request No. 05880261
(July 19, 1988).