Eric L. Caminiti,

Complainant,



v. 



John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.



Appeal No. 0120101786



Agency No. 4H-310-0076-09



DECISION



On March 18, 2010, Complainant filed an appeal from the Agency's February
18, 2010, final decision 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.  The Commission accepts the
complaint pursuant to 29 C.F.R. § 1614.405(a).  For the following reasons,
the Commission AFFIRMS the Agency's final decision.



BACKGROUND



At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk, GS-06, at the Agency's Buena Vista Annex
in Columbus, Georgia.  Complainant signed a Last Chance Agreement (LCA)
on July 14, 2008, which stipulated that Complainant's failure to adhere
to the provisions of the agreement from July 10, 2008 through July 10,
2010, "will result in your immediate removal from the Postal Service."
Ex. 7 at 1.  On May 28, 2009, the Agency issued Complainant a Notice
of Removal, charging Complainant with "improper conduct" and he was
subsequently removed on July 16, 2009.  Ex. 3 at 1.  



On September 4, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (Caucasian), color
(white), age (52), and reprisal for prior protected EEO activity under
Title VII when he was removed from the Postal Service on July 16, 2009.1



At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ).  In accordance
with Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).  The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.



CONTENTIONS ON APPEAL



On appeal, Complainant alleges that the Agency removed him to save money
because of his age.  The Agency requests we affirm its decision.



ANALYSIS AND FINDINGS



As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a).  See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").



To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination.  Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the agency has articulated legitimate
and nondiscriminatory reasons for its conduct.  See U.S. Postal
Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 



In this case, we find that the Agency articulated a legitimate,
nondiscriminatory reason for its actions.  In the Notice of Removal,
signed by the Manager of Mail Processing Operations (S1), stated that
"[t]he District Consumer Affairs office received a complaint from [a
customer] that you mailed a letter to her Post Office box address and
used your position with the Postal Service to obtain that information."
Notice of Removal at 1.  In his affidavit, S1 stated that Complainant
was removed because he was charged with improper conduct for using his
position to gain access to the customer's post office box.  CR Aff. at 3.
S1 further stated that the LCA was taken into account when issuing
the Notice of Removal.  Id at 7.  The terms of the LCA included that
Complainant would be "an exemplary employee for the duration of th[e]
agreement" and he agreed "to maintain proper conduct in accordance with
Postal rules and regulations."  Ex. 7 at 1.  We find that Complainant
violated the terms of the LCA when he sent the letter to the customer's
post office box.  Accordingly, the Commission finds that the Agency
has articulated a legitimate non-discriminatory reason for removing
Complainant from the Postal Service.

The burden now shifts to Complainant to demonstrate that the Agency's
reasons for his removal are pretext.  In his affidavit, Complainant
admitted he found the customer's post office box from his work.
Comp. Aff. at 3.  Complainant further states that he did not know it was
wrong to use his job to gain access to the post office box information.
Id.  In his appeal, Complainant alleges that he was removed because
the Postal Service is struggling financially.  Complainant App. at 1-2.
He contends that because of his long service he has achieved the highest
compensation for his position, and the Postal Service would save money by
removing him.  Id.  However, we find that Complainant offers no evidence
to support his contentions, and fails to offer statements explaining how
he is being retaliated against or how his color, race, or age factored
into the Agency's decision to remove him.  Complainant's explanation
for his actions does not meet his burden.  We find that Complainant has
failed to provide any evidence that the Agency's reasoning is pretext,
and has failed to meet his burden.  Accordingly, the Commission finds
that the Agency did not subject Complainant to disparate treatment.

CONCLUSION



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 established that he was subjected to discrimination
as alleged.  Accordingly, the Agency's decision is AFFIRMED.  



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





July 30, 2010

Date



  

1 In his complaint, Complainant claimed he was discriminated against
when he was issued a Notice of Removal on May 28, 2009 and when he was
removed on June 16, 2009.  We note that when a complaint is filed on a
proposed action and the agency subsequently proceeds with the action,
the action is considered to have merged with the proposal. See Siegel
v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997).
Because we find that Complainant's claims have merged, we address only
the merits of his removal in this case. 



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0120101786













U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013   







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0120101786