01971987
03-12-1999
Mary Marcelino Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western areas), Agency.
Mary Marcelino v. United States Postal Service
01971987
March 12, 1999
Mary Marcelino )
Appellant, )
) Appeal No. 01971987
v. ) Agency No. 4F-920-1097-95
) Hearing No. 340-95-3870X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Pacific/Western areas), )
Agency. )
______________________________)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning her complaint of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against her on the basis of her sex (female), color (not indicated)
and race (Hispanic) when, on December 23, 1994, she was: (1) accused
of being intoxicated; (2) sent for a fitness for duty examination;
(3) denied information concerning fitness for duty guidelines; and (4)
placed in a Leave Without Pay (LWOP) status. Following the agency's
investigation, an administrative judge (AJ) issued a recommended decision
of no discrimination without a hearing, pursuant to EEOC Regulation 29
C.F.R. � 1614.109(e)(3). The agency thereafter adopted the AJ's findings
and recommendation. It is from this decision that appellant now appeals.
The undisputed facts are as follows: During all times relevant to the
complaint, appellant (Hispanic, female) was a Full-time Distribution
Window Clerk, (PS 05/0) who began employment with the agency on April 16,
1994. On December 23, 1994, the appellant and a co-worker, C1, (black,
male) were directed to a physician for a fitness-for-duty examination in
accordance with established agency guidelines. Appellant and C1 were sent
for a fitness-for-duty examination because based upon their behavior,
performance and physical appearance, their first-line supervisor, S1,
(black, male) believed that they were under the influence of some type
of drug. As a result of the fitness-for-duty examination, appellant
and C1 were subjected to a drug urine screen which revealed that both
appellant and C1 were under the influence of Marijuana. As a result of
the positive drug urine screen, appellant and C1 were placed in a LWOP
status until such time as they were determined to be fit for return
to duty.
The AJ found that appellant failed to establish a prima facie case of
discrimination because she failed to identify any similarly situated
employees, outside appellant's protected class, who were treated more
favorably. The only identified comparator was C1, who falls outside
appellant's protected classes and committed the same offense that
appellant committed. However, the undisputed record reveals that C1
received the identical treatment that appellant received.
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 properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981). The Commission concludes that, in all material respects, the AJ
accurately set forth the facts giving rise to the complaint, and the law
applicable to the case. We further find that the AJ correctly determined
that appellant failed to establish discrimination based on sex, race,
or color.
We also find that appellant's contentions on appeal are without merit. For
instance, appellant asserts, for the first time on appeal, that the
"agency supervisors and area manager [committed] perjury [in their]
EEO affidavits." However, appellant fails to provide specific probative
evidence of such alleged perjury sufficient to raise a genuine issue of
material fact. We further note that nothing in the record raises an
inference that any agency official committed perjury. Appellant also
asserts that the agency denied her the opportunity to independently test
the drug analysis or obtain copies of the test results. Assuming the
agency did not give appellant the opportunity to test the accuracy
of the drug test, we find that because there is no allegation that
C1 and appellant were treated differently in this regard, there is no
evidence that this failure was based on appellant's sex, color, or race.
Assuming that the agency made a mistake, or even acted unreasonably
regarding appellant's drug use, there is no evidence that the agency
acted with discriminatory motive. Lastly, appellant asserts, for the
first time on appeal, that the agency "refused to take testimony from
[the] Shop Stewart and Union President as to [the] details of December
23, 1994." Because appellant failed to proffer what relevant knowledge
the Shop Stewart and the Union President may possess, which would raise
a genuine issue of material fact, we cannot determine that the failure
to interview these individuals was a harmful error by the agency.
In addition to the above, the Commission finds that the agency has
proffered a legitimate, non-discriminatory reason for its employment
decision; appearance of intoxication and positive drug test results.
Moreover, appellant has not shown nor alleged specific probative facts
which indicate that the agency's reasons were pretextual and the true
reasons for its employment action was based upon appellant's sex,
color or race. 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. �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 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:
3/12/99
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations