01982793
07-20-2001
Curtis L. Rawls, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Curtis L. Rawls v. United States Postal Service
01982793
7/20/01
.
Curtis L. Rawls,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01982793
Agency No. 4-G-770-1478-95
Hearing No. 260-99-8022X
DECISION
Curtis L. Rawls (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (black), and physical and mental
disability (leg injury and chemical dependency), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq. The appeal is accepted in accordance with 29 C.F.R. �1614.405.
For the following reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issue on appeal is whether complainant was subject to discrimination
on the aforementioned bases when on March 22, 1995, he was denied
reinstatement into the agency's Houston Post Office.
BACKGROUND
The record reveals that complainant was first employed by the agency
in 1989 as a Part-Time Flexible Carrier. In October of 1990, while
still employed by the agency, complainant was the victim of an off
duty robbery which resulted in his hospitalization for two months.
Complainant was given a light duty assignment upon his return to work.
Due to his chemical dependency on Tylenol 3 and Demerol, complainant went
into rehabilitation at the Guenster Rehabilitation Center in Bridgeport
Connecticut. According to complainant, he did not tell his supervisor
that he was going into rehabilitation, but he had a counselor from
the rehabilitation center write to his supervisor and union official
informing them that he was in rehabilitation. It is not clear from the
record whether the agency ever received this letter, but on the same date
that complainant was released from the rehabilitation center, he also
received a letter from the agency informing him that effective November
8, 1991, he was terminated for failure to be regular in attendance.
Ex. 6.<1> Complainant subsequently applied for reinstatement to the
agency's Bridgeport, Connecticut Post Office, but that request was denied
on August 27, 1993. Complainant subsequently applied for reinstatement
to the agency's Post Office in Houston Texas, and that request was also
denied on March 22, 1995. It is this latter denial of complainant's
reinstatement request that forms the basis for the instant complaint.
In responding to complainant's allegation of discriminatory treatment,
the Human Resources Specialist (hereinafter HRS) (black, disability
unspecified) averred that she was not aware of complainant's race
when she denied his request for reinstatement. The HRS added that she
denied complainant's request for reinstatement because he had previously
been removed from the agency for unsatisfactory attendance. HT p. 22.
According to the HRS based on the agency's regulations, anyone who was
removed is not eligible for rehire or reinstatement. Id. <2> Further,
the HRS stated that removal for unsatisfactory attendance was removal
for cause. The HRS also gave the name of several comparable employees
whose reinstatement requests she had denied because of their prior
removal from the agency. HT p. 23.
In a recommended decision dated November 20, 1997, an Administrative Judge
(AJ) of the EEOC found that complainant failed to establish a prima facie
case of either race or disability discrimination. Specifically, the AJ
found that complainant was not a qualified individual with a disability
because even with the limited duty accommodation, complainant was unable
to be regular in attendance. With respect to the race claim, the AJ
found that complainant failed to establish a prima facie case because
he did not name any similarly-situated employees of another race who
were treated more favorably than he was. The AJ found that even if
complainant was able to establish a prima facie case of discrimination,
the HRS articulated a legitimate nondiscriminatory reason for her
action, (e.g., she was prohibited by agency regulations from reinstating
complainant), which complainant failed to show to be pretext. In a
final agency decision (FAD) dated February 3, 1998, the agency adopted
the AJ's recommended finding of no discrimination.
CONTENTIONS ON APPEAL
In his appeal statement, complainant argues that he did provide proof that
the agency was aware of his enrollment in the Guenster Rehabilitation
Center. He also averred that there were affidavits confirming that two
similarly situated white employees were treated more favorably than
he was under similar circumstances. Complainant also notes that his
hearing was conducted in the absence of his EEO representative.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission notes that the AJ gave
complainant the opportunity to raise any objections prior to the
start of the administrative hearing and complainant failed to do so.
The fact that complainant proceeded with the hearing in the absence
of his EEO representative does not undermine the legitimacy of the
hearing nor does it undermine the factual and legal conclusions reached
by the AJ in this case. In analyzing a disparate treatment claim under
the Rehabilitation Act, where the agency denies that its decisions were
motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) he is an
"individual with a disability"; (2) he is "qualified" for the position
held or desired; (3) he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
Complainant may establish a prima facie case of race discrimination by
showing that: (1) he is a member of a protected class; and (2) he was
accorded treatment different from that given to persons otherwise
similarly situated who are not members of his protected group.
See Potter v. Goodwill Industries of Cleveland, Inc., 518 D.2d 864,
865 (6th Cir. 1975). Complainant may also set forth evidence of acts
from which if otherwise left unexplained, an inference of discrimination
may be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
A prima facie case of discrimination based on disability is established
where complainant has produced sufficient evidence to show that (1) he is
a �person with a disability� for purposes of the Rehabilitation Act, as
defined in 29 C.F.R. � 1630.2(g); (2) that he is a �qualified person with
a disability,� in that he is qualified for, and can perform, the essential
functions of the position he holds or desires with or without reasonable
accommodation, as specified in 29 C.F.R. � 1630.2(m); and (3) that he
received an adverse employment action as a result of his disability.
Complainant also must demonstrate a causal relationship between his
disabling condition and the agency's reason for the adverse action.
Prewitt v. United States Postal Service, 662, F.2d 292 (5th Cir. 1981).<3>
Allegation of Race Discrimination
The Commission agrees with the AJ's finding that complainant failed to
establish a prima facie
case of race discrimination. The sole comparison employee cited by
complainant in his affidavit never worked in the Houston District
and was therefore not a similarly situated employee for the purposes
of this case. See Payne v. Illinois Central R.R. 665 F. Supp. 1308
(W.D. Tenn. 1987). (Similarly situated generally means that the
persons who are being compared are so situated that it is reasonable
to believe they would receive the same treatment in the context of
a particular employment decision). The HRS testified that she was
not aware of the circumstances of the comparative employee named by
complainant, but she did give the names of several other former postal
employees in the Houston District, whose reinstatement request she denied
because, like complainant, had been removed by the agency. Nor was there
otherwise sufficient evidence from which a prima facie inference of race
discrimination could be drawn.
Allegation of Disability Discrimination
There is no dispute that complainant is a disabled employee. The AJ's
ruling against complainant on this matter hinged on his finding
that complainant is not a qualified individual with a disability.
Irrespective of whether or not complainant is a qualified individual with
a disability, we agree with the AJ's finding that complainant failed to
prove pretext in this case. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, (2000) ( the Supreme Court held that a plaintiff
may show pretext, by establishing a prima facie case and sufficient
evidence to that defendant's explanation is unworthy of credence).
Complainant presented no evidence to rebut the HRS's testimony that due
to the agency's regulations, she was unable to reinstate complainant
because he was previously removed for cause.
Accordingly, the agency's finding of no discrimination on the bases
of race and disability in the denial of complainant's request for
reinstatement is AFFIRMED.
CONCLUSION
Therefore, the agency's finding of no discrimination in the denial of
complainant's request for reinstatement 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
7/20/01
__________________
Date
1 The citations in this decision refer to
the exhibit/page in the report of investigation or to testimony in the
hearing transcript (HT).
2 The pertinent parts of the agency's Personnel Operations Handbook
states: �[i]t is the USPS policy to refuse employment to persons who
were removed from the Postal Service or from other federal employment
for cause...� Ex. 17.
3 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.