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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ALLEN C. AUR v. JOHN E. POTTER * * * Civil No. JFM-04-236 * * ***** MEMORANDUM Allen C. Aur has instituted this pro se action for employment discrimination against John E. Potter, the Postmaster General of the United States Postal Service ("USPS"). Aur, who is African American, alleges that he was discriminated against on the basis of his race when his employment was terminated. Defendant has filed a motion for summary judgment to which Aur has responded. The motion will be granted. I. A. Aur was hired by USPS on September 12, 1998. He served as a motor vehicle operator at the Baltimore Processing and Distribution Facility. Within a year, on August 2, 1999, he was given a warning letter for absenteeism. On March 1, 2000, he submitted a claim seeking compensation for an injury allegedly sustained at work. This claim was investigated and during the course of the investigation USPS discovered that Aur had falsely answered several questions on the forms comprising the employment applications. Specifically, Aur had indicated on the employment forms the following information: (1) he had never been convicted of a crime; (2) he had no previous motor vehicle accidents; (3) he had never been treated for a psychiatric disorder; (4) he had no preexisting injuries or medical conditions; and (5) he had not been fired from any previous job. USPS's investigation revealed

that; (1) Aur had been convicted of breaking and entering and malicious destruction of property; (2) he had filed five separate claims with various insurers for motor vehicle accidents from 1994 through 1997; (3) he had filed a number of state workers compensation claims and had received awards for injuries to his back, left shoulder, chest, and body and had been given various permanent partial disability ratings associated with each claimed injury; (4) he had been treated by psychiatrists and psychologists for depression and anxiety attacks; and (5) he was terminated from a previous job because of an argument with his supervisor. When Aur completed his employment application package, he also signed USPS's Falsification and Postal Crime Affidavit. In that document he acknowledged that USPS had the authority to terminate his employment at any time should it determine that his employment application contained false information. B. Shortly after USPS completed its investigation, Aur tested positive for alcohol while on the job. He was sent home and subsequently received a several day suspension. While Aur was on suspension, the results of the investigation were made known to Edgar McMullen, the Manager of Transportation Networks and Operations at the Baltimore Processing and Distribution Facility. McMullen asked Ronald Gordon, a Transportation Supervisor, to further review the matter. Gordon recommended to McMullen that Aur be fired. McMullen agreed with Gordon's recommendation, and Aur was sent a Notice of Removal on September 21, 2000, proposing that his employment be terminated on October 26, 2000. Aur filed a grievance contesting the proposed termination. During the initial phase of the grievance process, McMullen offered Aur a three-week suspension, with the condition of

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completion of an alcohol treatment program, in lieu of termination. Aur rejected the offer and elected to have the matter submitted to an arbitrator for resolution. The arbitrator, after holding a hearing, upheld USPS's decision to terminate Aur's employment. Aur filed a formal administrative complaint alleging race-based discrimination. After depositions were taken and a hearing was held, an administrative judge with the Equal Employment Opportunity Commission issued a written decision determining that the decision to terminate Aur was not discriminatory. Aur appealed the ruling to the EEOC's Office of Federal Operations. The ruling was affirmed. III. Self-evidently, Aur's false statements on the forms in his employment application constitute a compelling ground for the termination of his employment. Indeed, not to discharge Aur might reasonably be viewed as entirely irresponsible. Aur contends, however, that the action taken against him was racially discriminatory because Michael Stachowski, a Caucasian employee of USPS, who Aur alleges had engaged in similar misconduct was treated more leniently than Aur. There are three fallacies in this contention. First, upon learning that Stachowski had made false statements on his employment application forms, USPS sent him a Notice of Removal just as it sent a Notice of Removal to Aur. The reason that Stachowski's employment was not terminated was that, unlike Aur, he accepted a settlement offer at the first stage of the grievance process. Second, the false statements made by Aur on his employment application forms were more severe than the statements made by Stachowski on his employment application forms. Stachowski's misstatements related solely to his medical history. As stated above, Aur's

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misstatements related not only to his medical history but also his criminal record, his history of motor vehicle accidents, and the circumstances surrounding his being fired from one of his previous jobs. Third, to the extent that Aur complains that Stachowski was offered more favorable settlement terms than he at the first stage of the grievance process (Stachowski was offered a four-day suspension whereas Aur was offered a three-week suspension with the condition of alcohol treatment), the disparity of the settlement offers simply is not what is in issue here. Moreover, there was ample justification for USPS to offer a more favorable settlement to Stachowski than it did to Aur. Stachowski had worked for USPS for eight years, had no discipline on his record, and had been issued a merit award. Aur, in contrast, had been employed by USPS for less than two years and had been cited for absenteeism and an alcohol violation. For these reasons defendant's motion for summary judgment will be granted. A separate order to that effect is being entered herewith.

Date: July 9, 2004

/s/ J. Frederick Motz United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ALLEN C. AUR v. JOHN E. POTTER * * * Civil No. JFM-04-236 * * ***** ORDER For the reasons stated in the accompanying memorandum, it is, this 9th day of July 2004 ORDERED 1. Defendant's motion for summary judgment is granted; and 2. Judgment is entered in favor of defendant against plaintiff.

/s/ J. Frederick Motz United States District Judge

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