01a02743
07-28-2000
Anthony L. DesVignes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
Anthony L. DesVignes v. USPS
01A02743
July 28, 2000
.
Anthony L. DesVignes,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(N.E./N.Y. Metro Region),
Agency.
Appeal No. 01A02743
Agency No. 4B-010-0017-99
DECISION
Complainant timely filed an appeal from a final agency action concerning
his complaint of unlawful employment discrimination on the basis of
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> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the agency's final
action is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether complainant has proven by a preponderance
of the evidence that he was subjected to unlawful employment
discrimination on the basis of sex (male) when, on November 23, 1998,
he was informed that he would not be rehired as a casual mail handler.
BACKGROUND
The record reveals that complainant, a former agency employee, applied
for re-employment on November 3, 1998 as a casual employee. On November
23, 1998, he was informed that he would not be re-hired because of
a discrepancy in regard to his criminal record as disclosed on his
employment application.
After informal attempts to resolve complainant's concerns failed,
complainant filed a formal EEO complaint with the agency on December
21, 1998, alleging that the agency had discriminated against him on the
basis of sex.
Complainant contended that he was not hired because of a 1995 DWI charge
on his record. He alleged that he was discriminated against because he
had been hired previously in June of 1997 despite the DWI on his record.
He alleged that, unlike himself, another male casual employee with a DWI
charge had been re-hired. He also stated that a female casual employee
was terminated because of her criminal record.
The agency argued that its policy is to request and verify criminal
records, and then to disqualify any applicants who have falsified their
applications. The agency contended that complainant was disqualified
because he falsified his application by failing to disclose that in
addition to his DWI charge, he had been charged with attaching wrong
motor vehicle plates on the same date. The agency also argued that the
male casual employee cited by complainant was re-hired because, unlike
complainant, he was honest on his application.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On January 12, 2000, the AJ issued a decision without a
hearing, finding no discrimination.
Assuming arguendo that complainant could establish a prima facie case
of sex discrimination, the AJ concluded that the agency articulated
a legitimate, nondiscriminatory reason for its action, i.e., that
complainant falsified his employment application. The AJ also stated
that complainant had failed to demonstrate that similarly situated
employees not in his protected class were treated differently or that
his sex was a factor in the agency's decision. On January 18, 2000,
the agency issued a final action implementing the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant argues, through his attorney, that the agency erred
when it did not expand the investigation to include the bases of race
(black) and national origin (Trinidad). Complainant, who is black and
born in Trinidad, argues that the agency should have expanded the bases
of the complaint when he identified a similarly situated employee, a white
male believed to be born in the United States, not in his protected class
who was allegedly treated differently. Specifically, complainant argues
that the comparison employee also had DWIs but was re-hired. He further
contends that the comparison employee falsified his application as well,
and that the agency's reason for the disparate treatment is pretextual.
The agency submits no response to these contentions, and requests that
we affirm its final action.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in Title VII cases is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
Complainant has the initial burden of establishing a prima facie case
of discrimination. A prima facie case of discrimination based on sex
in a non-selection case is established where complainant has produced
sufficient evidence to show that: (1) he was a member of a protected
class; (2) he applied and was qualified for the position; (3) he was not
selected for the position; and (4) he was accorded treatment different
from that given to persons otherwise similarly situated who are not
members of his protected group. See Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998); O'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308 (1996); Carver v. Department of the
Interior, EEOC Request No. 05930832 (May 12, 1994).
The burden of production then shifts to the agency to articulate a
legitimate, non-discriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981). If the agency is successful, the burden of production shifts back
to complainant to establish that the agency's proffered explanation is
pretextual, and that the real reason is discrimination or retaliation.
Throughout, complainant retains the burden of proof to establish
discrimination by a preponderance of the evidence. See St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
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. Complainant failed to
establish a prima facie case of discrimination based on sex. Complainant
belongs to a protected class (male), applied and was qualified for the
position of casual mail handler, and was not selected for the position.
However, complainant failed to satisfy the fourth element of the prima
facie case of sex discrimination in that the comparison employee who
was hired was, like complainant, male. While the characteristics of
a comparative employee are not a necessary element of the prima facie
case under Title VII, complainant has presented no other evidence that
gives rise to an inference of sex discrimination. In fact, complainant
himself stated that there was a similarly situated female employee who
was terminated because of her criminal record. The agency confirmed
that this employee was terminated for the same reason that complainant
was not re-hired - falsification of her application. This suggests that
complainant was
treated similarly and not differently from similarly situated persons
who are not members of his protected group.
Even if complainant could establish a prima facie case of sex
discrimination, the AJ correctly found that the agency had articulated
a legitimate, non-discriminatory reason for not hiring complainant.
The record reveals that complainant falsified his application by failing
to disclose another charge in addition to his DWI charge. Complainant
correctly points out that, contrary to the agency's contention, the male
comparison employee who was re-hired also falsified his application
by failing to disclose two additional DWI charges in other districts.
Nevertheless, because the male comparison employee was of the same
protected class as complainant, the Commission finds that complainant
failed to present evidence that the agency's actions were motivated by
discriminatory animus toward his sex. Accordingly, we discern no basis
to disturb the AJ's decision.
In regard to complainant's contentions on appeal that the agency
should have expanded the bases of the investigation to include race and
national origin, a careful review of the record reveals that at no point
during the investigation did complainant indicate that he believed his
race and/or national origin motivated the agency's actions. While a
complainant may amend his or her complaint to add a basis at any point
during the investigation, a complainant may not add a basis on appeal.
See Dragos v. United States Postal Service, EEOC Request No. 05940563
(June 19, 1995).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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
July 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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 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.