Alvino Simpson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 22, 2009
0120092998 (E.E.O.C. Dec. 22, 2009)

0120092998

12-22-2009

Alvino Simpson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Alvino Simpson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092998

Hearing No. 440-2008-00106X

Agency No. 1J609002206

DECISION

On June 25, 2009, complainant filed an appeal from the agency's May 12,

2009 final decision concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Laborer/Custodial at the Bulk Mail Center in Chicago, Illinois.

On October 6, 2006, complainant filed an EEO complaint alleging that he

was discriminated against on the basis of disability1 (lower back pain)

when:

1. On October 19, 2005, complainant received a Notice of Proposed

Removal dated October 18, 2005 for failure to meet the terms of his Last

Chance Settlement Agreement dated April 22, 2005;

On December 27, 2005, complainant filed an appeal with the Merit Systems

Protection Board (MSPB) concerning the removal action and on February 14,

2006, a MSPB Administrative Judge issued an initial decision dismissing

complainant's appeal for lack of jurisdiction. Complainant then filed

the instant complaint. The Agency subsequently issued a decision

(FAD1) dismissing the complaint for untimely EEO counselor contact and

complainant appealed to the Commission. We issued a decision on April

18, 2007 reversing FAD1 and remanding the matter to the agency for an

investigation.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant requested

a hearing but the AJ denied the hearing request on the grounds that

complainant failed to follow various orders of the AJ. The AJ remanded

the complaint to the agency, and the agency issued a final decision

(FAD2) pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that

complainant failed to prove that he was subjected to discrimination as

alleged. Specifically, the agency found that complainant failed to show

he was covered by the Rehabilitation Act and hence failed to establish

a prima facie case. The agency further found that, assuming arguendo

that complainant established a prima facie case, the agency articulated

a legitimate, nondiscriminatory reason for its action, specifically that

complainant was issued the removal notice for unsatisfactory attendance

and failure to follow the leave request procedure. The agency concluded

that complainant failed to show that the agency's articulated reason

for its action was a pretext for discrimination based on disability.

Complainant presents no new argument on appeal and the agency requests

that we affirm FAD2.

ANALYSIS AND FINDINGS

As this is an appeal from a decision 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). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

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). In the instant case, the notice of

proposed removal stated that complainant would be removed for "Failure to

meet the terms of your last chance settlement." Report of Investigation,

(ROI) Exhibit 3. The notice went on to state:

When you were questioned about the charge in the letter you offered no

reasonable explanation as to why you could not be regular in attendance.

A review of the facts included a Last Chance Firm Choice dated April

22, 2005. As agreed to by you and your representative you were not to

exceed four (4) unscheduled absences in any 6 month period. You failed

to meet this requirement. You had 17 unscheduled absences from May 9,

2005-October 3, 2005. You exceeded frequency and duration as stated

on FMLA paperwork on file completed by your Physician. From the date

of your Proposed Removal, October 19, 2005-November 20, 2005, you had

13 unscheduled absences. Your record shows you have no regard for the

rules pertaining to attendance. Your unacceptable attendance adversely

affects the ability of the Postal Service to maintain its mission to

provide the public with reliable and assured service. Therefore, you

will be removed from the Postal Service on December 16, 2005. Id.

The Senior Plant Manager (RMO1: no claimed disability) responsible for the

removal said that complainant's "last chance firm choice agreement was

given much consideration in making the decision" to remove complainant.

ROI, Affidavit B.

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). In his Formal Complaint, complainant

said that he submitted a FMLA request on July 7, 2005 "due to several

conditions," but that he did not hear back from management until the

following month and that "in between that I had to miss work because of

my illnesses." Complainant maintains he continued to submit medical

documentation but he did not receive a leave approval for a month.

He states he again had to seek time off work due to an illness, but

was told that he needed to submit additional medical documentation.

He contends that he was unable to obtain the required medical information

until October 2005.

Based on a thorough review of the record and the contentions on

appeal, including those not specifically addressed herein, we find that

complainant has not met his burden of establishing, by a preponderance

of the evidence, that the agency's articulated reason for its action is

a pretext for discrimination. We note in this regard that complainant

does not address RMO1's contention that complainant's absences "exceeded

frequency and duration as stated on FMLA paperwork on file completed by

your Physician." ROI, Exhibit 3. Nothing submitted by complainant or

gathered during the investigation indicates that the legitimate reasons

proffered by agency management for complainant's termination were a

pretext for discrimination.

Accordingly, we AFFIRM FAD2

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

December 22, 2009

__________________

Date

1 For purposes of this decision the Commission assumes without finding

that complainant is an individual with a disability. 29 C.F.R. �

1630.2(g)(1).

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0120092998

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092998