01a10253
01-09-2001
Margaret J. Warren, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Margaret J. Warren v. United States Postal Service
01A10253
January 9, 2001
.
Margaret J. Warren,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A10253
Agency No. 4F-926-0185-98
Hearing No. 340-99-3323X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) 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.<1>
Complainant alleges she was discriminated against on the bases of race
(Black), sex (female) and national origin (African-American) when she was:
(1) placed in a non-duty, non-pay status on May 8, 1998; (2) issued an
emergency off-duty placement notice on May 15, 1998; and (3) issued a
notice of removal from the agency effective July 11, 1998. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final action.
The record reveals that during the relevant time, complainant was employed
as a PS-5 Letter Carrier at the agency's Rancho Cucamonga, California
facility (�facility�). The record reflects that on or about May 31,
1994, complainant completed PS Form 2591 (Application for Employment)
and answered �yes� to a question (number 7a) asking whether she had been
convicted of a felony or misdemeanor in state or federal courts. As a
result, the agency did not extend an offer of employment to complainant at
that time. In May of 1997, complainant completed another PS Form 2591, in
which she did not answer �yes� or �no� to the question regarding felony or
misdemeanor convictions, but rather wrote in the column of the application
�will explain in interview.� Complainant was then interviewed by the
agency, and when asked by the interviewer about her response, she stated
that she was accused of illegal entry in an altercation involving one of
her children, and also signed a Falsification and Postal Crime affidavit
stating that the agency has the authority to terminate her employment
should it determine that she falsified any information contained in
her application for employment. Investigative Report, at Exhibit 6B.
Complainant was then hired by the agency and began work on May 27, 1997.
In April of 1998, the agency received information which was contrary to
complainant's prior statements about her criminal record. Specifically,
the information stated that complainant pled guilty in 1994 to charges of
unarmed forcible entry and infliction of corporal injury, and furthermore
pled guilty to charges of perjury and welfare fraud after being arrested
in December of 1995. Complainant received a sentence of five (5) years
for this conviction, and failed to disclose information regarding the 1995
arrest and subsequent plea bargain in her 1997 application for employment.
As a result, the facility's Manager of Customer Services (MCS) notified
complainant that she had been placed in Emergency Off-Duty status as
a result of the information received regarding her criminal record.<2>
Subsequently, the MCS notified complainant on June 1, 1998 that she would
be removed from the agency effective July 11, 1998, for being less than
honest and forthright regarding her criminal record.<3>
Believing she was a victim of discrimination, complainant filed a formal
EEO complaint with the agency on July 29, 1998. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on any basis. Specifically, the AJ found that
although complainant is a member of several protected classes, she failed
to demonstrate that similarly situated employees not in her protected
classes were treated differently under similar circumstances. The AJ
found that three (3) comparison employees identified by complainant
were not similarly situated as their employment situations were not
comparable to complainant's. Further, the AJ found that two of the
employees cited by complainant were also terminated, but for different
infractions than complainant was terminated for. In addition, the AJ
found that the third comparison employee was not similarly situated as the
investigation into falsification of his employment application was closed
when it was determined that he had no conviction, as he had represented
in his application. The AJ concluded that there were no facts in the
record to establish that complainant was denied conditions or benefits
of employment afforded to employees not in her protected classes.
In addition, the AJ found that assuming, arguendo, complainant had
established a prima facie case of discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions, specifically,
that it followed an agency policy that employees who are not truthful
in their employment applications will be terminated. The AJ found that
complainant was terminated solely as the agency determined that she had
not been truthful in her 1997 employment application as she failed to
disclose her 1995 arrest and guilty plea. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful discrimination. The agency's
final action implemented the AJ's decision. Complainant has made no
contentions on appeal, and the agency requests that we affirm its final
action.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We find that
complainant failed to present evidence that any of the agency's
actions in disciplining and ultimately terminating her were motivated by
discriminatory animus toward complainant's race, sex or national origin.
In so finding, the Commission notes that the evidence establishes
that the sole reason for complainant's termination was the agency's
policy of terminating employees who are determined to have falsified
their employment applications. We thus discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 9, 2001
__________________
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 When complainant was questioned about her failure to inform the agency
about her 1995 arrest and subsequent plea bargain, she stated that she
had forgotten about it. Investigative Report, at Exhibit 3B.
3 The record reflects that complainant filed a grievance regarding her
proposed removal, and the agency offered her the opportunity to resign,
attempt to have her 1995 conviction sealed and reapply to the agency with
a new PS Form 2591 with priority consideration. Complainant rejected
this offer. The arbitrator who heard complainant's grievance then
concluded that the agency had just cause to remove complainant for
falsification of her application. Investigative Report, at Exhibit 4.