01a60013
03-07-2006
Judith McLendon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judith McLendon v. United States Postal Service
01A60013
March 7, 2006
.
Judith McLendon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60013
Agency No. 1-H-324-0052-04
DECISION
Complainant timely initiated an appeal from an agency's final decision
dated August 11, 2005, concerning her formal EEO complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. ,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. , and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal. 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Mail Processing
Clerk at the agency's West Palm Beach, Florida facility. Complainant
filed a formal complaint on September 27, 2004. Complainant claimed
discrimination on the bases of race (Caucasian), color (white), sex
(female), disability (lower back), age (53 years old), and in reprisal
for prior EEO activity when:
(1) On July 21, 2004, the agency subjected complainant to an
investigative interview and placed her on an emergency suspension; and
On August 17, 2004, the agency issued complainant a notice of removal
for improper conduct (stealing a money order in the amount of $425.00
from the mail and cashing it).
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
initially requested a hearing, but subsequent withdrew that request,
and asked that the agency issue a final decision.
In its final decision, the agency determined that complainant failed
to establish a prima facie case of discrimination as to each of her
alleged bases as she failed to adduce any evidence to show that similarly
situated individuals were treated more favorably when found guilty of
the same infraction.
Even assuming that complainant established a prima facie case of
discrimination as to each of her alleged bases, the agency determined
that management articulated a legitimate, non-discriminatory reason
for its action, and complainant produced no evidence to show that the
reason was a mere pretext for discrimination. Specifically, the agency
determined that an investigation into the matter conclusively proved
that complainant cashed the money order at issue, and that complainant
admitted the theft, and that this was the reason that management issued
her a notice of removal. The agency found that complainant produced
no evidence to show that this reason was pretextual, or that management
was motivated by discriminatory animus due to her race, color, sex, age,
disability, or in retaliation for her prior EEO activity.
On appeal, complainant contends that the agency made a misstatement in
its final decision, incorrectly indicating that she neither requested a
hearing nor a final decision, when, in fact, she had requested a hearing,
but subsequently withdrew the request. Complainant also avers that the
agency failed to adequately investigate her complainant, and that she
could not provide information on how similarly situated individuals
where treated more favorably so as to establish a prima facie case
because she would have no access to this type of confidential information.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000).
As an initial matter, we find that complainant accurately states on appeal
that the agency's final decision incorrectly reflects that complainant
failed to request a hearing or final decision. However, we find such
error to be harmless. Moreover, as to complainant's argument of an
inadequate investigation, we find that complainant merely identifies
a list of individuals who she claims the agency more favorably treated
in similar circumstances, with no more than a bare assertion to support
this contention. As such, we cannot conclude that the investigator's
failure to undertake evidentiary development to ascertain if there is
any substance to complainant's bare assertion renders the investigation
inadequate. In this regard, we advise complainant that it is she who
bears the burden of proof in this matter. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Finally, our
review indicates that there is sufficient evidence of record upon which
to base our decision in this matter.
We concur with the agency that management articulated a legitimate,
non-discriminatory reason for its actions, and complainant fail to
show that more likely than not, the agency's articulated reasons for
its actions were a pretext for discrimination. The record supports a
finding that the reason the agency suspended, and subsequently removed
complainant from employment, was due to her theft of a $425.00 money
order. While complainant may feel that management should have considered
mitigating circumstances, such as her many years of employment, and
believed her assertion that she found the money order in the bathroom
(over the findings of the postal investigator to the contrary), and
reached a less harsh result, she presents no evidence to show that the
articulated reason is a mere pretext for discrimination, or that the
responsible management officials were motivated by unlawful animus
towards her because of her race, color, sex, age, disability, or in
reprisal for engaging in prior EEO activity.
Therefore, after a careful review of the record, we AFFIRM the agency's
final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 7, 2006
__________________
Date