Willie C. Martin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionAug 10, 2000
01a02571 (E.E.O.C. Aug. 10, 2000)

01a02571

08-10-2000

Willie C. Martin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Willie C. Martin v. USPS

01A02571

August 10, 2000

.

Willie C. Martin,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01A02571

Agency No. 4H330051097

DECISION

Complainant filed a timely appeal of a final agency action (FAA)

concerning his complaint of unlawful employment discrimination on the

basis of race (Black) and sex (male), in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq.<1> Complainant alleges he was discriminated against when on April

21, 1997, complainant was placed on emergency suspension, and on June 3,

1997, he was terminated from his position.

Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405), the Commission accepts complainant's appeal from the

agency's final action dated January 5, 2000 in the above-entitled matter.

For the following reasons, the Commission affirms the FAA. The record

reveals that during the relevant time, complainant was employed as a

letter carrier PS5, at the Northridge Annex, Ft. Lauderdale, Florida.

Complainant alleged that his managers discriminated against him in

suspending and subsequently issuing him a Notice of Removal. The Notice

of Removal stated that complainant solicited loans from customers on his

assigned delivery route. The record also reflects that in the Fall of

1999, complainant failed to deliver mail to customers from whom he had

borrowed money.

After receiving the Notice of Removal, complainant sought EEO counseling

and subsequently, filed a formal complaint on October 21, 1997.

The agency accepted the complaint for investigation. At the conclusion

of the investigation, complainant requested a hearing before an EEOC

administrative judge (AJ). Finding no material facts in dispute, the AJ

issued a recommended decision on the compliant without a hearing pursuant

to 29 C.F.R. � 1614.109 (e), finding no discrimination. The FAA accepted

the AJ's decision, and complainant now appeals.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. Complainant has the initial burden

of establishing a prima facie case of discrimination. If complainant

meets this burden, then the burden shifts to the agency to articulate

some legitimate,

nondiscriminatory reason for its challenged action. Complainant must then

prove, by a preponderance of the evidence, that the legitimate reason

articulated by the agency was not its true reason, but was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973).

Complainant can establish a prima facie case of gender 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 he belongs to a statutorily protected class

and that he 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, all relevant aspects of the employees,

work situation must be identical or nearly identical. Godby v. Department

of the Treasury, EEOC Request No. 05960220 (May 7, 1998)(citing Smith

v. Monsanto Chemical Co., 770 F.2d 719, 723 (8thCir. 1985).

In the instant case, complainant failed to show that he was discriminated

against because of his sex and/or race. Complainant meets the first prong

of a prima facie case of discrimination, in that he as a Black male, is

a member of a protected class. The Commission finds that complainant

has failed to meet the necessary second-prong of the prima facie case

in that complainant failed to raise any inference of discrimination.

To raise an inference of discrimination, complainant could have, but

failed to submit evidence of discrimination, e.g., a comparison with

a similarly situated coworker who was treated differently. The record

does not contain evidence of similarly situated persons -other letter

carriers borrowing money from their customers- outside of his protected

class who were treated differently. Nor does the record contain any

other information from which we can infer discriminatory animus.

However, assuming arguendo that complainant was able to establish a prima

facie case of race and sex discrimination, we find that the agency has

offered a legitimate nondiscriminatory reason for issuing the Notice of

Removal. Specifically, complainant violated agency policy when he took

loans from customers on his delivery route. We find that complainant

has failed to establish that the agency's reason was a pretext for

discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final action

dated January 5, 2000, because the Administrative Judge's issuance of

a decision without a hearing was appropriate and a preponderance of the

record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

August 10, 2000

Date

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.