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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