0120092998
12-22-2009
Alvino Simpson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alvino Simpson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092998
Hearing No. 440-2008-00106X
Agency No. 1J609002206
DECISION
On June 25, 2009, complainant filed an appeal from the agency's May 12,
2009 final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
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 Laborer/Custodial at the Bulk Mail Center in Chicago, Illinois.
On October 6, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of disability1 (lower back pain)
when:
1. On October 19, 2005, complainant received a Notice of Proposed
Removal dated October 18, 2005 for failure to meet the terms of his Last
Chance Settlement Agreement dated April 22, 2005;
On December 27, 2005, complainant filed an appeal with the Merit Systems
Protection Board (MSPB) concerning the removal action and on February 14,
2006, a MSPB Administrative Judge issued an initial decision dismissing
complainant's appeal for lack of jurisdiction. Complainant then filed
the instant complaint. The Agency subsequently issued a decision
(FAD1) dismissing the complaint for untimely EEO counselor contact and
complainant appealed to the Commission. We issued a decision on April
18, 2007 reversing FAD1 and remanding the matter to the agency for an
investigation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing but the AJ denied the hearing request on the grounds that
complainant failed to follow various orders of the AJ. The AJ remanded
the complaint to the agency, and the agency issued a final decision
(FAD2) pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that
complainant failed to prove that he was subjected to discrimination as
alleged. Specifically, the agency found that complainant failed to show
he was covered by the Rehabilitation Act and hence failed to establish
a prima facie case. The agency further found that, assuming arguendo
that complainant established a prima facie case, the agency articulated
a legitimate, nondiscriminatory reason for its action, specifically that
complainant was issued the removal notice for unsatisfactory attendance
and failure to follow the leave request procedure. The agency concluded
that complainant failed to show that the agency's articulated reason
for its action was a pretext for discrimination based on disability.
Complainant presents no new argument on appeal and the agency requests
that we affirm FAD2.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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 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). In the instant case, the notice of
proposed removal stated that complainant would be removed for "Failure to
meet the terms of your last chance settlement." Report of Investigation,
(ROI) Exhibit 3. The notice went on to state:
When you were questioned about the charge in the letter you offered no
reasonable explanation as to why you could not be regular in attendance.
A review of the facts included a Last Chance Firm Choice dated April
22, 2005. As agreed to by you and your representative you were not to
exceed four (4) unscheduled absences in any 6 month period. You failed
to meet this requirement. You had 17 unscheduled absences from May 9,
2005-October 3, 2005. You exceeded frequency and duration as stated
on FMLA paperwork on file completed by your Physician. From the date
of your Proposed Removal, October 19, 2005-November 20, 2005, you had
13 unscheduled absences. Your record shows you have no regard for the
rules pertaining to attendance. Your unacceptable attendance adversely
affects the ability of the Postal Service to maintain its mission to
provide the public with reliable and assured service. Therefore, you
will be removed from the Postal Service on December 16, 2005. Id.
The Senior Plant Manager (RMO1: no claimed disability) responsible for the
removal said that complainant's "last chance firm choice agreement was
given much consideration in making the decision" to remove complainant.
ROI, Affidavit B.
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). In his Formal Complaint, complainant
said that he submitted a FMLA request on July 7, 2005 "due to several
conditions," but that he did not hear back from management until the
following month and that "in between that I had to miss work because of
my illnesses." Complainant maintains he continued to submit medical
documentation but he did not receive a leave approval for a month.
He states he again had to seek time off work due to an illness, but
was told that he needed to submit additional medical documentation.
He contends that he was unable to obtain the required medical information
until October 2005.
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 met his burden of establishing, by a preponderance
of the evidence, that the agency's articulated reason for its action is
a pretext for discrimination. We note in this regard that complainant
does not address RMO1's contention that complainant's absences "exceeded
frequency and duration as stated on FMLA paperwork on file completed by
your Physician." ROI, Exhibit 3. Nothing submitted by complainant or
gathered during the investigation indicates that the legitimate reasons
proffered by agency management for complainant's termination were a
pretext for discrimination.
Accordingly, we AFFIRM FAD2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
December 22, 2009
__________________
Date
1 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
??
??
??
??
2
0120092998
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092998