Minnie L. Andrews, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionFeb 3, 2011
0120103680 (E.E.O.C. Feb. 3, 2011)

0120103680

02-03-2011

Minnie L. Andrews, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Minnie L. Andrews,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120103680

Agency No. 4H-300-0195-05

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's

appeal from the Agency's August 4, 2010 final decision concerning an equal

employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

During the period at issue, Complainant was employed as a Mail Processor

at the Agency's Athens General Mail Facility in Athens, Georgia.

On August 1, 2005, Complainant filed the instant formal complaint.

Therein, Complainant claimed that the Agency discriminated against her on

the bases of race (African-American), sex (female), religion (Baptist),

color (black), age (over 40), and in reprisal for prior protected activity

when:

1. on May 2, 2005, she was placed in an Emergency Off-Duty Status; and

2. on June 10, 2005, she received a Notice of Removal to become effective

July 15, 2005.

By letter dated May 5, 2005, the Agency informed Complainant that she

was being placed in an Emergency Off-Duty Status because she submitted

a claim for reimbursement of expenditures for which she was not entitled

to receive reimbursement. The letter further stated that, based upon a

preliminary investigation by the Postal Inspection Service, retaining

Complainant in a duty status could result in a loss of postal funds,

and a further decision would be made as to whether or not Complainant

would be disciplined.

By letter dated June 10, 2005, the Agency notified Complainant that

she would be removed for "filing a false claim for reimbursement for

expenditures on official business for pecuniary gain" and "improper

conduct and behavior." The letter stated that Complainant submitted a PS

Form 1164 claim for reimbursement for expenditures on official business

dated March 2, 2005 in the amount of $40.50 in business expenditures

spent while attending official training on February 4, 2005. The letter

further stated that an Inspection Service investigation found that

Complainant traveled to the training as a passenger in the personal car of

a co-worker, and during the investigation, Complainant affirmed that she

did not pay for the co-worker's gasoline, or incur any travel expenses.

Additionally, the letter stated that the co-worker maintained that she

and Complainant did not stop for lunch or dinner and drove directly to

and from the training. The letter concluded that Complainant filed the

reimbursement claim so that she could "cheat the Postal Service for your

personal gain."

On February 2, 2006, the Agency issued a final decision finding no

discrimination finding that Complainant failed to provide that she was

subjected to discrimination as alleged because she failed to show that

similarly situated employees outside her protected classes were treated

more favorably than she was treated under similarly circumstances or that

there was a causal connection between her protected EEO activity and the

discipline at issue. The Agency further found that Complainant failed

to show that the Agency's non-discriminatory reasons for its actions

were pretext for unlawful discrimination.

On appeal, the Commission found, however, that the Agency's investigation

into Complainant's claims were deficient. Therefore, the Commission

remanded the Agency's February 2, 2006 final decision and ordered the

Agency to issue a new decision on the merits of the entire complaint

once it supplemented its investigation with evidence addressing (a)

whether five employees cited as comparators by Complainant submitted

reimbursement forms for expenses that they were not entitled to receive

reimbursement, including copies of reimbursement forms they submitted,

or (b) at the very least, official documentation on what money was paid

out to them, why, and what discipline, if any, they incurred; and (c)

provide a copy of Complainant's disciplinary history, if any, as well

as a clear reason why Complainant's discipline was more appropriate than

the less severe discipline that Complainant's named comparators received.

Minnie Andrews v. USPS, EEOC Appeal No. 0120062477 (June 5, 2007).

Following a supplemental investigation, the Agency issued a new

final decision on October 24, 2007, again finding no discrimination.

The Agency submitted additional affidavits from the Supervisor of

Distribution Operations (Supervisor) and the Acting Supervisor of

Distribution Operations (Acting Supervisor). The Agency also submitted

an investigative summary; Employee Everything Time and Attendance Reports

for Complainant and comparative employees; PS-50 Notification of Personnel

Action forms for Complainant and comparative employees; the Collective

Bargaining Agreement between the American Postal Workers Union (APWU),

the American Federation of Labor and Congress of Industrial Organization

(AFL-CIO), and the agency; and the 2004 APWU Joint Contract Interpretation

Manual.

In its October 24, 2007 final decision, the Agency found that Complainant

was not subjected to unlawful discrimination or reprisal. Specifically,

the Agency determined that Complainant did not establish a prima facie

case of discrimination because her cited comparators were not similarly

situated. The Agency concluded that Complainant did not prove that

the Agency's non-discriminatory explanations were pretext for unlawful

discrimination.

On appeal, Complainant argued that the Agency's supplemental investigation

was inadequate. Specifically, Complainant argued that the Agency failed

to include the disciplinary record of the cited comparative employees;

a rebuttal affidavit from Complainant regarding the five comparators;

and an affidavit from the Plant Manager who reviewed and concurred with

the decision to terminate Complainant. Complainant further argued that

the investigative summary erroneously claims that the Supervisor stated

that Complainant should be terminated because he felt that it was risky

to retain her because she had access to Agency money, but such testimony

was not found in the Supervisor's affidavit statement.

On remand, the Commission again found that the record remained too

inadequately developed for us to make a determination on the merits of

Complainant's complaint, despite our previous order directing the Agency

to conduct a supplemental investigation. Therefore, the Commission

again remanded the Agency's October 24, 2007 final decision and ordered

the Agency to issue a new decision on the merits of the entire complaint

once it supplemented its investigation with the disciplinary record of

the cited comparative employees; a rebuttal affidavit from Complainant;

affidavit statements from the five comparators; and an affidavit from the

Plant Manager who reviewed and concurred with the Supervisor's decision

to terminate Complainant from Agency employment. Minnie Andrews v. USPS,

EEOC Appeal No. 0120080649 (April 13, 2010).

Following a supplemental investigation, the Agency issued a new final

decision on June 8, 2010, finding no discrimination, which is the subject

of the instant appeal.

On June 8, 2010, the Agency issued the instant final decision, again

finding no discrimination. The Agency found that Complainant did

not establish a prima facie case of race, sex, religion, color, age

and reprisal discrimination. The Agency found, however, Complainant

established a prima facie case of reprisal discrimination. The Agency

further concluded that Agency management articulated legitimate,

nondiscriminatory reasons for its actions which Complainant failed to

show were a pretext for discrimination.

Regarding claim 1, Complainant's supervisor (S1) stated that he placed

Complainant in an Emergency Off-Duty Status based on filing a false

claim for reimbursement of expenditures. S1 stated that he instructed

Complainant to complete a travel voucher prior to her attending a

training session. S1 stated at that time it was his understanding that

Complainant would be driving her own vehicle to the training session.

The record reflects that Complainant submitted a PS Form 1164 "Claim for

Reimbursement for Expenditures on Official Business" dated March 2, 2005

in the amount of $40.50 for business expenditures for February 4, 2005.

S1 stated, however, "it was brought to my attention after the travel

voucher had been submitted by the Complainant, approved and cashed by

the Complainant, that the Complainant had ridden as a passenger in a

car driven by another employee attending the same training session."

S1 stated that Complainant was not entitled to file a travel voucher

"because she rode as a passenger in a vehicle driven by another employee

and she did not incur any expenditure while traveling. Action was taken

because the Complainant applied for and received funds that she was not

entitled." S1 stated that following an investigation of Complainant's

conduct, he placed her on an off-duty status. The record reflects

that the Investigation Service investigation found that Complainant

traveled to the training session as a passenger in the personal vehicle

of another employee. Furthermore, S1 stated that Complainant filed a

grievance concerning her Emergency Off-Duty Status and "the matter has

been settled."1

Regarding claim 2, S1 stated that in June 2005, he issued Complainant a

Notice of Removal effective July 15, 2005 for falsification of official

documents and improper conduct and behavior. The record reflects that

in the Notice of Removal, S1 noted that during an interview with the

Postal Inspections, Complainant acknowledged she rode as a passenger in

a named Clerk's vehicle and that she did not pay for gasoline that day in

question. S1 further noted that when questioned by the investigators why

she filled out the travel voucher when she did not incur any expenses,

Complainant responded "well, I traveled." S1 stated that he found

Complainant's explanations "to be nothing more than a masquerade to

hide her actions to obtain money from the Postal Service that you

were not otherwise entitled." The record reflects that S1 relied on

the Article 36, Section 2B "Travel, Subsistence and Transportation of

the National Agreement between the Agency and the union; Section 2-1

"Your Responsibilities as a Traveler" of Handbook F-15; and Section 666.2

"Behavior and Personal Habits" of the Employee and Labor Relations Manual

in making his determination to remove Complainant from Agency employment.

The Senior Operations Manager (SOM) stated that she was the concurring

official concerning Complainant's removal because the Plant Manager

was not available on the day in question. SOM stated that she signed

the removal papers "based on the evidence presented by the Inspection

Service in the Investigative Memorandum by the Inspection Service."

The record contains three supplemental affidavits from three named

comparators. Two out of three comparators stated that they have

never submitted any claims for financial reimbursement to the Agency.

The third comparator stated that he submitted only one claim in which he

was reimbursed $20.00 "because I lived about eighty miles from where I

needed to train and I had to use my own vehicle to get there. I wasn't

even hired at the Postal Service yet - it was pending. I had to pass

the training before I could get hired."

The record also contains a supplemental affidavit from the Acting

Administrative Assistant (A1). Therein, A1 stated that she searched

through the entire personnel files for all five named comparators

identified by Complainant. A1 stated that she provided copies of

disciplinary records on file for four named comparators.

The record reflects that one of the four comparators received an

indefinite suspension for committing a crime and a Notice of Removal

for "Absent Without Permission," "Absent and Unavailable for Duty

Without leave (AWOL) and "Failure to Respond to Official Directives."

The second comparator received a Letter of Warning for failure to

be regular in attendance. The third comparator received a Letter of

Warning, a Notice of a 7-Day No-Time-Off Suspension, a Notice of a 14-Day

Suspension and Notice of Removal for failure to be regular in attendance.

The fourth comparator was placed in an Emergency Placement in Off-Duty

Status for creating a disturbance on the work room floor and a Notice of

a 7-Day Suspension for being absent from assignment without permission

and creating a disturbance in the work room floor. As for the fifth

comparator, A1 stated that there is no record of any discipline issued

to her.

On appeal, Complainant argues that the Agency's supplemental investigation

was again inadequate because the Agency "only partially complied with

the Commission's decision and Order and failed to adduce the information

which would demonstrate evidence of disparate treatment by its management

officials." Complainant argues that the Agency "did not attempt to obtain

an affidavit from employees listed by requesting address forwarding for

employees for whom mail was not deliverable."

Further, Complainant argues that she has never received training

"on the rules regarding under what circumstances and how Form 1164s

are to be filled out." Complainant further argues that in accordance

with S1's instructions, she filled out the travel voucher "for miles

traveled to this training; however, she did not ask to be paid for such

travel, nor did she request to be paid for a certain amount of money."

Complainant argues that even though the Agency terminated her from Agency

employment, the Agency "itself completed her travel voucher claiming that

she was entitled to money because of miles she traveled and although

her supervisor and Plant Manager knew that the Complainant rode as a

passenger in a vehicle for which the travel voucher was completed."

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

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. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant, on appeal, has provided no persuasive arguments indicating

any improprieties in the Agency's findings. The Commission has considered

the lengthy procedural disposition of this case, our prior remands, and

a review of the record that has been developed. Agency management has

clearly articulated that its actions were based on the results of the

investigative into the disputed expense claim. The record evidence

does not establish that Complainant was treated more harshly than

other similarly situated employees who engaged in the same misconduct.

Without this evidence, or other evidence to suggest that discriminatory

animus motivated the disputed actions, management's explanation stands.

Therefore, after a review of the record in its entirety, including

consideration of all statements on appeal, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the Agency's final

decision because the preponderance of the evidence of record does not

establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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

77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court

that the Court appoint an attorney to represent you and that the Court

also 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 with the Court 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

February 3, 2011

__________________

Date

1 The record reflects that the Postal Service Manager agreed that

Complainant was entitled to the payment of the travel voucher and settled

Complainant's grievance by instructing that she should be paid.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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