01983375
04-18-2001
Wesley Harris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Wesley Harris v. United States Postal Service (Southeast Area)
01983375
April 18, 2001
.
Wesley Harris,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01983375
Agency Nos. 4-H-350-1016-95; 4-H-350-1064-95
Hearing Nos. 130-96-8023-X; 130-96-8036X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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.; the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 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. Complainant alleges he
was discriminated against:
(1) on the bases of race (Black), disability (hip injury),
and reprisal (prior EEO activity) when he was
issued a seven (7) day suspension notice on October 3, 1994; and
(2) on the bases of race (Black), disability (hip injury), age (58),
and reprisal (prior EEO activity) when on November 4, 1994,
he was charged with being absent without leave (AWOL)
on October 19 and 20, 1994.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Distribution Clerk, PS-5, at the
agency's Birmingham, Alabama facility, filed formal EEO complaints
with the agency on January 19, 1995, and April 26, 1995, alleging
that the agency had discriminated against him as referenced above.
At the conclusion of the complaint investigations, complainant received
copies of the investigative reports and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
In regard to case (1) above, the AJ concluded that complainant failed
to establish a prima facie case of discrimination on any basis.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees not in his protected classes were treated
differently under similar circumstances when they acted disrespectfully
towards their supervisors, the offense for which complainant received
the suspension. Then, too, the AJ found that complainant's previous
EEO activity was in 1986, and that no causal connection was established
between this prior activity and complainant's subsequent suspension.
In regard to case (2) above, the AJ also concluded that complainant failed
to establish a prima facie case of discrimination on any basis because
the record revealed no similarly situated comparators. Furthermore,
the management official who placed complainant in AWOL status said that
she was not aware of complainant's prior EEO activity. In addition,
there was no showing by complainant that �but for� his age, he would
have been treated differently.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. In regard to case (1) above,
the AJ determined that no other similarly situated employees had behaved
in the same disruptive manner and that the suspension was therefore
justified. In regard to case (2), the AJ found that complainant's failure
to provide the necessary medical documentation for his requested sick
leave served as the legitimate basis for the AWOL determination.
The AJ further found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. The agency's final decision implemented
the AJ's decision.
On appeal, complainant contends that the AJ erred when he found that
the decision to place complainant in AWOL status was legitimately
based upon the latter's failure to provide the required documentation.
He includes copies of the required documentation dated October 20, 1994,
which he states he gave to his supervisor (S-1) when he returned to work
on October 21, 1994, and reiterates arguments made below that he was
not disrespectful to S-1 and therefore the suspension was not justified.
The agency did not reply to complainant's arguments on appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951).
A finding regarding whether or not discriminatory intent existed is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
a discriminatory animus toward complainant's race, disability, or age.
In this regard, while complainant on appeal produced the relevant medical
documentation that would have changed his AWOL status back to the sick
leave originally applied for, he did not do so during the pre-hearing
discovery proceedings when it would have been procedurally proper.
Rather, he stated at that time that he would not be submitting anything
that was not already in the case file. Further, on appeal complainant
offered no explanation as to why he did not timely submit the required
documentation which would have kept the sick leave originally applied
for from being charged to AWOL. We thus discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's other contentions on appeal, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 18, 2001
Date