01972183
03-19-1999
Marshall Dukes, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas) Agency.
Marshall Dukes v. United States Postal Service
01972183
March 19, 1999
Marshall Dukes, )
Appellant, )
)
v. ) Appeal No. #01972183
) Agency No. 1-G-771-1197-95
William J. Henderson, ) Hearing No. 330-96-8116X
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas) )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against him in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et. seq., and � 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. In his complaint, appellant alleged that the agency
discriminated against him on the bases of his race (African American),
and physical disability (missing left ring finger), when on May 5,
1995, the agency terminated him during his probation as a result of
poor attendance. The Commission accepts this appeal in accordance with
EEOC Order No. 960.001.
Following an investigation of this complaint, appellant requested
a hearing before an Equal Employment Opportunity Commission (EEOC)
administrative judge (AJ). A hearing was conducted on July 29, 1996.
On August 19, 1996, the AJ issued a Recommended Decision (RD) finding
no discrimination.
The AJ found that appellant failed to establish a prima facie case of
discrimination based on race. Appellant failed to show that the agency
treated him differently than individuals not of his race. With respect
to his physical disability, the AJ also found that appellant failed to
establish a prima facie case. The AJ found that appellant was not a
qualified individual with a disability under the Rehabilitation Act. See
Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir. 1985).
Assuming that appellant had established a prima facie case of race
and disability discrimination, the AJ found that appellant failed to
establish that the agency's legitimate, non-discriminatory reasons
for terminating him were pretextual. The AJ found that appellant had
unacceptable attendance during his probationary period. The record
revealed that two unscheduled absences were sufficient for the agency to
terminate appellant during his probation. The AJ found that appellant
had two such absences. Appellant argued that his problems did not
begin until his supervisor found out about his missing finger. However,
the AJ determined that appellant's supervisor did not become aware that
appellant had a missing finger, until she held a meeting with appellant to
notify him of his attendance problems. Therefore, the AJ found that the
agency's concern was separate from appellant's condition. Furthermore,
the AJ determined that the agency had terminated individuals of other
races and national origins under similar circumstances. Additionally,
despite appellant's argument that the agency failed to accommodate him,
the AJ found that the agency did not fail to do so, since appellant did
not have a disability. On October 16, 1996, the agency issued a final
decision, adopting the AJ's finding of no discrimination. It is from
this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision sets forth the relevant facts,
and properly analyzes the appropriate regulations, policies, and laws
applicable to appellant's complaint as a disparate treatment claim.
Therefore, the Commission discerns no basis in which to disturb the AJ's
finding of no discrimination. Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision finding no discrimination.
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. 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:
March 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations