01976233
06-29-1999
Shedrick C. Harris, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.
Shedrick C. Harris v. United States Postal Service
01976233
June 29, 1999
Shedrick C. Harris, )
Appellant, )
) Appeal No. 01976233
v. ) Agency No. 4G-730-1114-96
) Hearing No. 310-97-5173X
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Southeast/Southwest), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Black), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. when he was terminated. This appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
Appellant was employed by the agency on February 17, 1996, as a Part-Time
Flexible Distribution Clerk. As a contingency to his employment
with the agency, appellant had to successfully complete a ninety-day
probationary period. Appellant received unsatisfactory ratings on
both his thirty-day (March 17, 1996) and sixty-day (April 17, 1996)
evaluations. Subsequently, appellant was issued a letter of separation
on April 29, 1996, informing him that he would be terminated, effective
April 30, 1996. Believing he was a victim of discrimination, appellant
filed a formal complaint alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). Thereafter, the AJ advised
the parties of her intent to issue findings and conclusions without
a hearing, pursuant to EEOC regulation, 29 C.F.R. �1614.109(e)(3).
The parties were given appropriate notice to submit any objections,
comments, or any relevant information regarding the AJ's notice.
Appellant submitted a response. However, the AJ issued a recommended
decision without a hearing on May 13, 1997, finding no discrimination.
On July 8, 1997, the agency issued a FAD adopting the AJ's RD.
The Commission has reviewed the record, consisting of the investigative
report, the AJ's recommended decision, various correspondence,
appellant's statement on appeal, and the FAD. 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 find that the AJ appropriately decided this case without a hearing.
We further conclude the agency successfully rebutted any inference
of discrimination appellant may have established by articulating a
legitimate, nondiscriminatory explanation for appellant's termination.
Specifically, the agency provided evidence that appellant's attendance
was unacceptable. Furthermore, appellant's supervisor discussed his
attendance problems with appellant, but appellant continued to have
problems and was subsequently terminated after an incident which resulted
in appellant being absent without leave. We find, as did the AJ, that
appellant failed to establish that the agency's articulated reason was
pretext for discrimination. Also, we note that appellant failed to
submit any additional statement or persuasive evidence in support of his
case on appeal. Therefore, the Commission discerns no basis to disturb
the AJ's findings of no discrimination which were based on a detailed
assessment of the record. Accordingly, 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:
June 29, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations