0120072658
08-16-2007
D'Andrea L. Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
D'Andrea L. Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072658
Agency No. 1J602003706
DECISION
On May 21, 2007, complainant filed an appeal from the agency's April 16,
2007, final decision concerning her 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
On September 5, 2006, complainant filed an EEO complaint claiming
discrimination based on race (African-American), sex (female), and
reprisal for prior protected EEO activity when (a) on April 26, 2006,
she was issued an Emergency Placement In an Off-Duty Status Without Pay
for misrepresentation and misuse of the agency's official government
tax-exempt status for the purchase of goods for her personal use and
benefit; and (b) on June 19, 2006, she was issued a Notice of removal
for conduct unbecoming a postal employee. Following an investigation,1
the agency issued a final agency decision (FAD) pursuant to 29 C.F.R. �
1614.110(b), concluding that complainant failed to prove that she was
subjected to discrimination as alleged.
At the time of events giving rise to this complaint, complainant worked as
a Mail Processing Clerk at the agency's P&DC facility in Palatine, IL.
In November 2005, complainant obtained a duplicate of the agency's
tax-exempt card from Wal-Mart, and she made unauthorized purchases for
her personal use through March 2006, when Wal-Mart questioned the agency
about certain items. Complainant initially claimed that she purchased
items for union-related activities, but eventually she admitted that she
used the card for personal gain without paying the tax on those items.
She was placed on emergency off-duty status and removed effective July
31, 2006.
The agency stated that it took action against complainant after
investigations by the postal inspection service, the inspector general's
office, and its agency managers that found that complainant made
purchases using the agency's tax-exemption status, that the purchases
were unauthorized and not for agency or union business, and that the
purchases were for her personal use and benefit. It concluded that her
conduct was egregious, and she was not truthful with agency inspectors.
The agency charged complainant with conduct unbecoming of a postal
employee and removed her from the agency. In her appeal statement,
complainant acknowledged that she used the card for personal gain and
cited several "discrepancies" in the record.
This is an appeal from a decision issued without a hearing pursuant
to 29 C.F.R. � 1614.110(b), and the agency's FAD is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). Generally, claims
of disparate treatment, such as complainant's claims based on race and
sex, are examined under the tripartite analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For complainant to
prevail, s/he must first establish a prima facie case 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. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once complainant has established a prima facie case, the burden then
shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful, the burden
reverts back to the complainant to demonstrate by a preponderance of
the evidence that the agency's reason(s) for its action was a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of further analysis only, we will assume, arguendo, and
without so finding, that complainant established a prima facie case of
discrimination based on race, sex and reprisal.2 We find that the agency
met its articulation burden and presented legitimate, nondiscriminatory
reasons for its actions. The agency explained that complainant made
unauthorized purchases for her personal use and benefit using the agency's
tax-exempt status to avoid paying lawful taxes. The burden of persuasion
now returns to the complainant to demonstrate by preponderant evidence
that the reasons given by the agency for its actions were pretext, or a
sham or disguise for discrimination. The complainant must show that the
agency's actions were more likely than not motivated by discrimination,
that is, that the actions were influenced by legally impermissible
criteria, i.e., race or sex. We find that complainant has not offered
evidence that the agency's reason was pretext, and that she admitted
that she used the agency's card for personal gain. Based on a thorough
review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that complainant has not shown
that the agency discriminated against her based on here race, sex,
or in reprisal.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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, Director
Office of Federal Operations
______8-16-07____________
Date
1 Complainant initially requested a hearing, but the Administrative Judge
dismissed her request and remanded the matter to the agency for decision.
(Hearing No. 440200700036x).
2 To establish a prima facie case, complainant must present evidence
which, if unrebutted, would support an inference of discrimination.
Swierkiewica v. Sorema, 534 U.S. 506 (2002); see O'Connor v. Consolidated
Coin Caters Corp., 517 U.S. 308 (1996); Enforcement Guidance on O'Connor
v. Consolidated Coin Caters Corp., (September 18, 1996).
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0120072658
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072658