03a20009
04-25-2002
Walter Stinson, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Walter Stinson v. United States Postal Service
03A20009
04-25-02
.
Walter Stinson,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A20009
MSPB No. AT 0752000781-I-1
DECISION
On November 1, 2001, Walter Stinson (hereinafter referred to as
petitioner) timely filed a petition with the Equal Employment Opportunity
Commission (the Commission) for review of the Final Order of the Merit
Systems Protection Board (MSPB or Board) dated September 27, 2001,
concerning an allegation of discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The petition is governed by the provisions of the Civil Service Reform
Act of 1978 and EEOC Regulations, 29 C.F.R. � 1614.303 et seq. The MSPB
found that the United States Postal Service (hereinafter referred to as
the agency) did not engage in discrimination as alleged by petitioner.
For the reasons that follow, the Commission concurs with the Board's
decision.
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against him based on race
(black) and sex when he was removed for improper conduct from his position
in July 2000 constitutes a correct interpretation of the applicable laws,
rules, regulations, and policy directives and is supported by the record
as a whole.
Petitioner filed an appeal with the MSPB challenging his removal from
his position with the agency and claiming discrimination based on race
and sex. A MSPB Administrative Judge (AJ) held a hearing and, on November
7, 2000, issued an Initial Decision, sustaining the removal and finding
that the agency did not discriminate against petitioner.<1> Petitioner
petitioned the full Board, but his request for review was denied.
At the time of his removal, petitioner worked as a Distribution Window
Clerk in Melbourne, Florida. On January 21 and 24, 2000, the agency
conducted audits of petitioner's flexible credit account.<2> The audit
revealed a shortage of $291.70; 74 sheets of Kwanza stamps, which he
was not authorized to hold or sell; and 133 sheets of Daffy Duck stamps
when he should have had no more than 82 sheets. Meanwhile, the agency
had discovered that another window clerk (E1) was short $731.87 and was
missing the sheets of Kwanza and Daffy Duck stamps that had been given to
her for sale. Although petitioner acknowledged that he was not entitled
to have the Kwanza or Daffy Duck stamps in his drawer and had not traded
with E1 or another clerk for the stamps, that his drawer was secure,
and that his shortage would have been significantly greater but for the
unauthorized stamps, he denied that he placed the stamps in his drawer
or had seen the stamps when he last worked on January 19, 2000. The AJ
stated that while the available documentary evidence "could have been
better," it was sufficient to prove the underlying charge and support
the testimony of the agency's representatives, "especially where the
[petitioner] was unable to offer a reasonable and credible explanation
for his possession of the stamps." Initial Decision, p. 10.
The AJ then addressed petitioner's claim of race and sex discrimination,
which rested on his contention that the agency failed to take action
against E1 (white, female), contending that she also had a substantial
shortage. The AJ rejected his comparison, finding that E1 was not
similarly situated to him, since her shortage was due to the absence of
stamps issued to her that were found in petitioner's possession. Further,
the AJ noted that E1 was not charged with having stamps not issued to
her and that no evidence supported such a charge. In conclusion, the
AJ found that petitioner failed to demonstrate disparate treatment when
the agency did not discipline E1.
In his petition, petitioner contended that E1 was similarly situated to
him, since both were window clerks at the same facility and that E1's
testimony was not credible. The agency's opposition brief argued that
petitioner and E1 were not similarly situated and that her credibility
was not at issue nor relevant to the decision, since the AJ did not rely
on it for his decision, and petitioner never explained the unauthorized
presence of the stamps in his possession.
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination constitutes a correct
interpretation of any applicable laws, rules, regulations, and policy
directives and is supported by the evidence in the record as a whole.
29 C.F.R. �1614.305(c). After considering petitioner's contentions
and reviewing the full record, the Commission concurs with the MSPB,
finding that the agency did not discriminate against petitioner.
Claims alleging disparate treatment are examined under the tripartite
analysis of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
Petitioner 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 consideration
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 offers rebuttal to the inference of discrimination by
articulating a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the petitioner bears
the ultimate burden to persuade the fact finder by a preponderance of
the evidence that the reasons offered by the agency were not the true
reasons for its actions but rather were a pretext for discrimination.<3>
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Where the agency
has articulated its reasons, the analysis may proceed directly to the
third step of the inquiry to consider the ultimate issue of whether
petitioner has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Because we move to
consider the ultimate issue of discrimination, petitioner's argument
that he was similarly situated to E1 because both were window clerks
who worked at the Melbourne Beach facility is presupposed. Id.
We find that the agency articulated a legitimate, nondiscriminatory reason
for its action, i.e., petitioner's possession of stamps not assigned to
him constituted improper conduct and grounds for the agency's removal
action. The record shows, and petitioner did not deny, that he was in
possession of stamps that had not been issued to him under circumstances
demonstrating improper conduct. We find, therefore, that the agency
met its burden of articulation.
The burden of persuasion returns to petitioner to demonstrate pretext.
We find that petitioner failed to address, and thereby demonstrate,
that the agency's reason for his removal was motivated by illegal
considerations of race or sex. Finally, we are not persuaded that
complainant's other contentions, that the agency failed to discipline
E1 and that E1's testimony was not credible, demonstrate pretext.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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
_____04-25-02_________________
Date
1The AJ also found that the charge as proven warranted disciplinary action
and that the removal penalty was within the bounds of reasonableness.
2Petitioner was absent the day of the first audit, having falsely told his
supervisor that he had had a car accident; he later told his supervisor
of his falsehood, explaining that he sought to avoid an additional
unexcused absence. Petitioner had been previously disciplined for
attendance-related matters.
3The petitioner can do this by showing, e.g., that a discriminatory
reason motivated the agency, that the agency's action was more likely
than not motivated by discrimination, or that the agency's action was
influenced by legally impermissible criteria.