01975250
05-20-1999
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas), Agency.
James E. Fisher v. United States Postal Service
01975250
May 20, 1999
James E. Fisher,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast/Southwest Areas),
Agency.
Appeal No. 01975250
Agency No. 1-G-771-1050-96
Hearing No. 330-96-8172X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his complaint that the agency discriminated against him on the
bases of race (African-American), color (light complexion), sex (male),
and age (52), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
Appellant alleged discrimination when on November 30, 1995, he was
put off the clock and subsequently issued a notice of removal dated
December 22, 1995, for allegedly failing a drug test and violating the
agency's last chance policy. The Commission hereby accepts the appeal
in accordance with EEOC Order No. 960.001. For the following reasons,
the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was employed
as a Motor Vehicle Operator (truck driver) at the agency's Barbara
Jordan Post Office in Houston, Texas. Believing that he was the victim
of discrimination, appellant sought EEO counseling and, thereafter,
filed a formal EEO complaint on March 11, 1996. The agency accepted the
complaint for investigation and complied with all of our procedural and
regulatory prerequisites. Subsequently, appellant requested a hearing
before an EEOC Administrative Judge (AJ), which was held on November
19, 1996. On April 7, 1997, the AJ issued a recommended decision
(RD) finding no discrimination. Thereafter, the agency adopted the
RD and issued a FAD, dated June 11, 1997, finding no discrimination.
It is from this agency decision that appellant now appeals. On appeal,
appellant reiterates previously submitted contentions.
The investigative record reveals that all agency truck drivers were
subject to random drug tests. In June 1995 appellant tested positive
for drug use and was suspended from employment. Thereafter, appellant
was given the opportunity to return to work so long as he enrolled in
and completed a drug treatment program, and entered into a Last Chance
Agreement (Agreement). Under the terms of the Agreement, if appellant
failed another drug test he would be removed from the agency. When
appellant failed a second drug test in November 1995, he was removed.
In his RD, the AJ concluded that appellant failed to establish a prima
facie case of discrimination on any basis because he failed to show
that he was treated less favorably than a similarly situated comparative
employee. Specifically, the AJ reasoned that appellant failed to show
that other employees of the facility were retained after testing positive
for drug use and violating a Last Chance Agreement.
After careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
presented the relevant facts, and properly analyzed the appropriate
regulations, policies and laws. The Commission discerns no basis to
disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
5/20/99
______________ ____________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations