0120081887
05-23-2008
John R. Garcia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John R. Garcia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081887
Agency No. 4J604014204
Hearing No. 210-2005-00150X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 19, 2008 final order concerning
his equal employment opportunity (EEO) complaint alleging 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.
At the time of the events at issue, complainant was employed by the agency
as a Distribution Window Clerk, PS-5, at the Hazel Crest Post Office in
Hazel Crest, Illinois. On August 19, 2004, complainant filed an EEO
complaint in which he alleged that the agency discriminated against
him on the bases of national origin (Mexican), sex (male), age (45),
and reprisal for prior protected EEO activity when, on July 23, 2004,
the agency issued him a notice of emergency placement in off duty status,
and when he was issued a notice of removal on September 13, 2004.
Following an investigation into the complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued
a decision by summary judgment in favor of the agency. Complainant
appealed. On June 21, 2007, the Commission reversed the AJ's decision,
concluding the judgment as a matter of law should not have been granted
in this case as the record contained genuine issues of material fact
that needed to be resolved at a hearing. Garcia v. United States
Postal Service, EEOC Appeal No. 0120054988. The case was remanded for
the scheduling of a hearing. A hearing was held on January 17, 2008,
and on February 12, 2008, the AJ issued a decision concluding that
complainant had failed to prove, by a preponderance of the evidence,
that discrimination had occurred. The agency issued its final action
on February 19, 2008, fully implementing the AJ's decision. It is from
this decision that complainant now appeals.
In his decision, the AJ assumed that complainant established a prima facie
case of discrimination, and found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. In doing so, the AJ made
specific findings about the credibility of the agency's witnesses.
The AJ found that the agency stated that from November 2003 through
July 2004, during a mandatory quarterly audit, a retail stock shortage
of approximately $800.00 was discovered at the Hazel Crest Post Office.
Agency policy required that shortages of more than $100.00 had to be
reported to the Postal Inspection Service. The postmaster testified
that he included complainant as the possible suspect in the report to
the Postal Inspection Service, although others had access to the retail
stock, because complainant was the only full-time window clerk at the
window for the majority of the day, had been discussing his wins and
losses in recent NCAA college basketball pools, had flashed a large roll
of bills and was wearing new shoes.
In May 2005, the Postal Inspection Service began an investigation of
the shortages, including pulling the tape receipts from all of the
individuals who had sales for a one-month period. Based on a review
of this information, the investigating postal inspector testified that
she determined that complainant had the most potential as a person of
interest responsible for the shortages. She based this conclusion on the
fact that complainant had a significant amount of one-stamp transactions.
She testified that normally clerks average less than five one-stamp
transactions in a week, while complainant had logged 284 one-stamp sales
over the month period. Therefore, an investigation of complainant was
started, including video surveillance. Complainant was subsequently
issued an emergency placement off-duty because the video revealed that
complainant was not inputting all his window transactions correctly, and
the manager wished to prevent future loss in Postal funds. The AJ noted
that the surveillance video (contained in the record) shows complainant
scanning products and then voiding the sales and entering them for less
than their actual prices. According to management, complainant was
subsequently issued the notice of removal because he failed to offer an
adequate explanation for why he was not inputting window transactions,
and could he account for the monetary overages that should have been in
his drawer when counted.
The AJ found that complainant failed to prove, by a preponderance of
the evidence, that the agency's reasons were pretext for discriminatory
animus.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 23, 2008
__________________
Date
2
0120081887
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081887