0120093476
11-12-2009
Desmin J. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Desmin J. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093476
Agency No. 4G-760-0148-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 7, 2009 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.
During the period at issue, complainant was employed as a City Carrier,
Transitional Employee (non-career) at the agency's Arlington Main Post
Office in Arlington, Texas.
On December 29, 2008, complainant filed the instant formal complaint.
Therein complainant alleged that the agency discriminated against him
on the bases of race (black) and sex (male) when:
on September 5, 2008, he was issued a Notice of Removal, effective
October 5, 2008.
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of the right to request
a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond.
On July 7, 2009, the agency issued the instant final decision, finding
no discrimination. The agency determined that complainant did not
establish a prima facie case of race and sex discrimination. The agency
further found that assuming, arguendo, that complainant established a
prima facie case of race and sex discrimination, management nonetheless
articulated legitimate, nondiscriminatory reasons for its actions which
complainant did not show were a pretext for unlawful retaliation.
Complainant's supervisor (S1) stated that he issued complainant a Notice
of Removal dated September 5, 2008, for unsatisfactory performance
for delaying mail. Specifically, S1 stated that on August 23, 2008,
complainant picked up four tubs of Priority Mail parcels that were mailed
from a business, and on Monday, August 25, 2008, a carrier opened up
the back of complainant's vehicle and "the four tubs were still there."
S1 stated that on August 25, 2008, a pre-disciplinary interview was
conducted in which complainant "stated that he had picked up the mail
and had forgot about them."
The record reflects that in the September 5, 2008 Notice of Removal,
complainant was charged with being in violation of the Sections
661.2(q), 665.13 and 665.13 of the Employee and Labor Relations Manual.
Section 661.2(q) states, "[p]rohibition against delay or destruction of
mail or newspaper (18 U.S.C. 1703)." Section 665.13 states "employees
are expected to discharge their assigned duties conscientiously and
effectively." Section 665.13 states "employees must obey the instructions
of their supervisors." The record further reflects that complainant was
also charged with a violation of Handbook M-41, City Delivery Carriers
Duties and Responsibilities, Section 122.14 which states "deposit mail
collected as instructed." Furthermore, S1 stated that complainant's
race and sex were not factors in his determination to remove him from
agency employment.
The Manager, Customer Services (MCS) stated that she was the concurring
official concerning complainant's removal. MCS stated that complainant
was removed from agency employment for delaying mail "by failure
to dispatch collected mail." MCS further stated that she did not
discriminate against complainant based on his race and sex.
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).
In the instant case, we find that after a careful review of the record,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination. It is noted that complainant pointed to
several other employees who he claimed engaged in similar misconduct
but were not terminated. First, complainant cited to a supervisor who
was responsible for the office when mail was left at the window unit
over the weekend. However, we agree with the agency's analysis that
this comparator was not similarly situated to complainant because of
the difference in employment status between the career supervisor and
complainant, a non-career line employee. Complainant also named two
female carriers, who were similarly non-career transitional employees.
He alleged that Employee A (black) left outgoing mail in the office, and
Employee B (white) left a collection box opened and mail was stolen from
it, but neither were terminated. However, the supervisor who issued
complainant's notice of removal, as well as the concurring manager,
denied knowledge of these alleged infractions by the two comparators.1
Complainant has not offered evidence to cast doubt on this testimony.
Complainant, on appeal, has provided no persuasive arguments indicating
any improprieties in the agency's findings. 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 (M1208)
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 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 (S0408)
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 (Z1008)
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
November 12, 2009
__________________
Date
1 Another supervisor indicated that Employee A received a letter of
warning for unsatisfactory work performance in August 2008.
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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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