01982289
11-04-1999
John D. Whitt, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John D. Whitt v. United States Postal Service
01982289
November 4, 1999
John D. Whitt, )
)
Appellant, )
) Appeal No. 01982289
v. ) Agency No. 1D-272104396
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
)
Agency. )
)
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of race (Caucasian), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges
he was discriminated against when: (1) he was charged with being two
hours absent without leave (AWOL); and (2) he was issued a seven (7)
day suspension for improper conduct/being out of the facility without
authorization. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the agency's decision is
AFFIRMED.
The record reveals that during the relevant time, appellant was
employed as a Mailhandler PS-04, at the agency's Greensboro, North
Carolina facility. Appellant alleged that he was treated differently
when compared to a similarly situated employee who was African American.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a complaint on December 22, 1996. At
the conclusion of the investigation, appellant failed to request either
a hearing or a final agency decision. We note too that the agency issued
a partial dismissal of four(4) other issues at the time that it accepted
two issues for investigation. It appears from the record that the four
dismissed issues were not appealed until the final agency decision was
issued on the remaining two issues.
The FAD concluded that appellant failed to establish a prima facie case
of race discrimination because he presented no evidence that similarly
situated individuals not in his protected class were treated differently
under similar circumstances. That is, the record indicated that an
African American employee was similarly placed on absence without leave
for failing to report for duty. In addition, appellant failed to provide
an affidavit to support any of his allegations of discrimination during
the investigation.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine,
450 U.S.248 (1981); United States Postal Service Board of Governors v.
Aikens, 460 U.S. 711, (1983), the Commission agrees with the agency that
appellant failed to present any evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that appellant
failed to even testify in support of his contention that his absence
from work without proper authorization was not the true reason for the
disciplinary action taken against him.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
11/4/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations