0120065258
05-29-2008
Russell J. Bearden, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Russell J. Bearden,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200652581
Hearing No. 100-2005-00702X
Agency No. 4K-220-0132-99
DECISION
Complainant filed an appeal with this Commission from the August 17,
2006 agency decision which implemented the July 5, 2006 decision of the
EEOC Administrative Judge (AJ).
In his consolidated complaints, complainant, a Rural Carrier, alleged that
the agency discriminated against him on the bases of race (Afro-American),
color (black), disability (stress, alcoholism, knee and back injuries)
and in reprisal for prior EEO activity when:
1. On August 6, 1999, the Manager of Customer Service (MCS) asked
complainant to sign two leave slips for July 23, 1999, and July 30,
1999, which were designated as absence without leave (AWOL); and to
sign two leave slips, dated July 26, 1999, and July 27, 1999, which were
designated as unscheduled sick leave, although complainant had medical
documentation from his doctor.
2. On September 2, 1999, complainant's supervisor, the Supervisor
of Customer Service, charged complainant as late.
3. On September 13, 1999, complainant was told by the MCS to sign
a late slip and when he refused to do so, complainant was told that he
might not be allowed to sign in. When complainant filed a leave slip
to go home, the MCS handed complainant a Notice of Occupational Disease
and Claim for Compensation (Form CA-2).
4. On September 14, 1999, complainant was told he could not work
without a doctor's release.
5. On September 18, 1999, complainant received a Notice of Removal,
dated September 14, 1999, with an effective date of termination of
October 14, 1999.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an AJ and his right to request an agency decision.
Complainant requested a hearing.
The AJ dismissed the hearing request and remanded the complaint to the
agency for issuance of a decision as a sanction against complainant.
In so deciding, the AJ found that complainant repeatedly failed to respond
to discovery requests and to comply with orders issued by the AJ.3 The
Commission notes that EEOC Regulations provide AJ's with broad discretion
in the conduct of a hearing, including such matters as discovery orders
and the drawing of adverse inferences and other sanctions. See e.g.,
Ortega v. United States Postal Service, EEOC Appeal No. 01956818 (February
5, 1998); Malley v. Department of the Navy, EEOC Appeal No. 01951503
(May 22, 1997). We find that the AJ properly exercised his discretion
in sanctioning complainant by dismissing complainant's hearing request
and remanding the complaint to the agency.
Complainant may establish a prima facie case of reprisal by showing that:
(1) complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof also set forth in McDonnell Douglas
Corp. v. Green, supra. See Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999);
Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this
analysis, in order to establish a prima facie case, complainant must
demonstrate that: (1) complainant is an "individual with a disability";
(2) complainant is "qualified" for the position held or desired;
(3) complainant was subjected to an adverse employment action; and
(4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001).
The prima facie inquiry may be dispensed where the agency has articulated
legitimate, 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). 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). Because this is an appeal from a decision
issued without a hearing, the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the agency's finding that it
did not discriminate or retaliate against complainant on any basis
was proper. Where, as here, the agency has articulated legitimate,
nondiscriminatory reasons for its actions, the Commission can dispense
with the prima facie inquiry. We find that complainant was subjected to
the actions by the agency because he failed to follow established agency
leave procedures. In addition, his unsatisfactory attendance and failure
to maintain a regular schedule led to his termination by the agency.
We find that the agency did not engage in any action for prohibited
or retaliatory reasons. Further, complainant has failed to show by a
preponderance of the evidence that any of the agency's reasons for its
actions were pretextual or were motivated by discriminatory animus.
Assuming arguendo, that complainant is an individual with disabilities,
complainant has not proffered evidence sufficient to establish that the
agency's actions violated the Rehabilitation Act. Complainant has not
shown that he requested accommodation. In the present case, we cannot
find that complainant requested an accommodation or an adjustment or
change at work because of his disabilities. Further, complainant does
not contend that he had done so. Further, the Commission notes that
during testimony which complainant provided in proceedings before the
Department of Labor's Office of Workers' Compensation Programs in January
2003, complainant stated that his attendance problems were not a result
of his drinking.
Construing the evidence in the light most favorable to complainant,
complainant has not shown that the agency discriminated against him.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons for its actions were pretextual or motivated by discriminatory
animus.
The agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 29, 2008
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
2 The Commission notes that in its Initial Decision, dated July 2002,
the Merit Systems Protection Board (MSPB) dismissed complainant's claim
on the issue of his removal on the grounds that it lacked jurisdiction to
hear the claim. Complainant petitioned the MSPB for review of the Initial
Decision. The MSPB denied complainant's petition deeming it untimely and
upholding its Initial Decision in a Final Decision, dated November 2002.
The record also reveals that complainant initiated EEO Counselor contact
on October 15, 1999, regarding the letter of removal and other issues.
3The AJ also addressed extensively the complaint on the merits, stating
that assuming arguendo had he not dismissed the hearing request, he
would have granted the agency's motion for a decision without a hearing
(summary judgment).
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0120065258
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065258