01A34094
06-10-2004
Timothy W. Beeman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Timothy W. Beeman v. United States Postal Service
01A34094
June 10, 2004
.
Timothy W. Beeman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A34094
Agency No. 4H-300-0291-00
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that at all relevant times, complainant was employed
by the agency as a Carrier Technician, PS-06, at the Duluth, Georgia Post
Office. By letter dated March 20, 2000, complainant was notified that
he would be removed from the agency effective at the close of business on
April 28, 2000. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint alleging
that the agency had discriminated against him on the basis of his race
(Black) and disability when he was issued a Notice of Removal on March
20, 2000.
At the conclusion of the investigation, complainant was informed
of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision (FAD).
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination based on race in that he failed
to show that he was treated less favorably than similarly-situated
individuals, outside of his protected class. The FAD also found that
complainant failed to establish a prima facie case of discrimination
based on disability, noting that he did not establish that he was
an individual with a disability pursuant to the Rehabilitation Act.
The FAD, nevertheless assumed, for the sake of argument, that complainant
established a prima facie case, and found that the agency articulated
legitimate, nondiscriminatory reasons for the termination; namely, that
complainant failed to report for duty as scheduled, was Absent Without
Leave (AWOL), and failed to respond to an official notice attempting to
get him to report to work as scheduled. The FAD discerned no evidence
that the agency's reasons were pretext for discrimination based on race
or disability.
Complainant raises no new arguments on appeal. The agency requests
that we affirm the FAD. As an initial matter we note that, as this is
an appeal from a FAD 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).
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 Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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 Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, for the sake of argument, that complainant was an individual
with a disability pursuant to the Rehabilitation Act, and that he
otherwise established a prima facie case of disability and race
discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for issuing the Notice of Removal.
Specifically, complainant continually failed to be regular in
attendance and was AWOL for the period February 9, 2000 through March
16, 2000, and failed to respond to an official notice attempting to
get him to report to work as scheduled. The Commission concludes that
complainant has not established by a preponderance of the evidence,
that the agency's reasons are pretext for discrimination. Initially,
we note that complainant does not deny that he failed to report to work
during the time period in question. Complainant contends, however,
that the reason he failed to report to work was that he had a medical
condition of stress and deep depression which was caused by management's
mental cruelty and harassment of him, which included put-downs, attacks,
favoritism toward White employees, verbal insults and embarrassment.<1>
Complainant offers the following as examples of such harassment: a manager
said to him �[Complainant] get out of the building!;� and, a manager told
him he had �no pity� for someone in complainant's condition. We find that
such statements do not clearly indicate race or disability-based animus.
Beyond these examples, complainant's descriptions of the�mental cruelty�
and �harassment� are vague and generalized, and there is insufficient
evidence of record for us to conclude that management subjected
complainant to discriminatory harassment.<2> Consequently, we cannot
conclude that management's subsequent issuance of a Notice of Removal
based on complainant's failure to be regular in attendance was motivated
by discriminatory animus. We note further that the record is devoid of
any other evidence to indicate that the agency's articulated reason for
issuing the Notice was not the true reason the action was taken. Finally,
we point out that there is no evidence that, prior to the issuance of the
Notice of Removal, complainant ever requested a reasonable accommodation
which would have enabled him to be regular in attendance.<3> Therefore,
after a careful review of the record, we AFFIRM the FAD.
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:
June 10, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Complainant also admits that part of the reason for his absence from
work was because he was dealing with, and seeking help for, an unrelated
chronic illness.
2 We note that complainant had the opportunity to request a hearing
before an Administrative Judge, but failed to do so. This would have
provided him an opportunity to develop the record as to the alleged
�mental cruelty� and �harassment.�
3 Complainant contends that he provided medical explanations for his
absences upon receiving the termination letter. However, he does not
state that he ever provided such documentation prior to the issuance of
the Notice.