Timothy W. Beeman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionJun 10, 2004
01A34094 (E.E.O.C. Jun. 10, 2004)

01A34094

06-10-2004

Timothy W. Beeman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Timothy W. Beeman v. United States Postal Service

01A34094

June 10, 2004

.

Timothy W. Beeman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01A34094

Agency No. 4H-300-0291-00

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final decision.

The record reveals that at all relevant times, complainant was employed

by the agency as a Carrier Technician, PS-06, at the Duluth, Georgia Post

Office. By letter dated March 20, 2000, complainant was notified that

he would be removed from the agency effective at the close of business on

April 28, 2000. Believing he was a victim of discrimination, complainant

sought EEO counseling and subsequently filed a formal complaint alleging

that the agency had discriminated against him on the basis of his race

(Black) and disability when he was issued a Notice of Removal on March

20, 2000.

At the conclusion of the investigation, complainant was informed

of his right to request a hearing before an EEOC Administrative

Judge or alternatively, to receive a final decision by the agency.

When complainant failed to respond within the time period specified in

29 C.F.R. � 1614.108(f), the agency issued a final decision (FAD).

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of discrimination based on race in that he failed

to show that he was treated less favorably than similarly-situated

individuals, outside of his protected class. The FAD also found that

complainant failed to establish a prima facie case of discrimination

based on disability, noting that he did not establish that he was

an individual with a disability pursuant to the Rehabilitation Act.

The FAD, nevertheless assumed, for the sake of argument, that complainant

established a prima facie case, and found that the agency articulated

legitimate, nondiscriminatory reasons for the termination; namely, that

complainant failed to report for duty as scheduled, was Absent Without

Leave (AWOL), and failed to respond to an official notice attempting to

get him to report to work as scheduled. The FAD discerned no evidence

that the agency's reasons were pretext for discrimination based on race

or disability.

Complainant raises no new arguments on appeal. The agency requests

that we affirm the FAD. As an initial matter we note that, as this is

an appeal from a FAD issued without a hearing, pursuant to 29 C.F.R. �

1614.110(b), the agency's decision is subject to de novo review by the

Commission. 29 C.F.R. � 1614.405(a).

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

He must generally establish a prima facie case by demonstrating that

he 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). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and 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); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Assuming, for the sake of argument, that complainant was an individual

with a disability pursuant to the Rehabilitation Act, and that he

otherwise established a prima facie case of disability and race

discrimination, we find that the agency articulated legitimate,

nondiscriminatory reasons for issuing the Notice of Removal.

Specifically, complainant continually failed to be regular in

attendance and was AWOL for the period February 9, 2000 through March

16, 2000, and failed to respond to an official notice attempting to

get him to report to work as scheduled. The Commission concludes that

complainant has not established by a preponderance of the evidence,

that the agency's reasons are pretext for discrimination. Initially,

we note that complainant does not deny that he failed to report to work

during the time period in question. Complainant contends, however,

that the reason he failed to report to work was that he had a medical

condition of stress and deep depression which was caused by management's

mental cruelty and harassment of him, which included put-downs, attacks,

favoritism toward White employees, verbal insults and embarrassment.<1>

Complainant offers the following as examples of such harassment: a manager

said to him �[Complainant] get out of the building!;� and, a manager told

him he had �no pity� for someone in complainant's condition. We find that

such statements do not clearly indicate race or disability-based animus.

Beyond these examples, complainant's descriptions of the�mental cruelty�

and �harassment� are vague and generalized, and there is insufficient

evidence of record for us to conclude that management subjected

complainant to discriminatory harassment.<2> Consequently, we cannot

conclude that management's subsequent issuance of a Notice of Removal

based on complainant's failure to be regular in attendance was motivated

by discriminatory animus. We note further that the record is devoid of

any other evidence to indicate that the agency's articulated reason for

issuing the Notice was not the true reason the action was taken. Finally,

we point out that there is no evidence that, prior to the issuance of the

Notice of Removal, complainant ever requested a reasonable accommodation

which would have enabled him to be regular in attendance.<3> Therefore,

after a careful review of the record, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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 (Z1199)

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 10, 2004

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations

1 Complainant also admits that part of the reason for his absence from

work was because he was dealing with, and seeking help for, an unrelated

chronic illness.

2 We note that complainant had the opportunity to request a hearing

before an Administrative Judge, but failed to do so. This would have

provided him an opportunity to develop the record as to the alleged

�mental cruelty� and �harassment.�

3 Complainant contends that he provided medical explanations for his

absences upon receiving the termination letter. However, he does not

state that he ever provided such documentation prior to the issuance of

the Notice.