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.