Donell T. Moss, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.

Equal Employment Opportunity CommissionAug 3, 2000
01976498 (E.E.O.C. Aug. 3, 2000)

01976498

08-03-2000

Donell T. Moss, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.


Donell T. Moss v. United States Postal Service

01976498

August 3, 2000

Donell T. Moss, )

Complainant, )

) Appeal No. 01976498

v. ) Agency No. 4J609107695

) Hearing No. 210976066X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Midwest Region), )

Agency. )

)

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision (FAD) concerning his complaint of employment discrimination on

the bases of race (Black), color (dark), and physical disability (illegal

drug addiction), in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq.; and the Rehabilitation Act of

1973, as amended, 29 U.S.C. �791, et seq.<1> Complainant claims that he

was discriminated against when his employment was terminated effective

April 8, 1995. We accept the appeal pursuant to 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405). For the reasons

that follow, the agency's decision is AFFIRMED.

At the time this matter arose, complainant was a Mail Processing

Equipment Mechanic at the agency's Chicago Bulk Mail Center, at Forest

Park, Illinois. He filed a formal EEO complaint on August 1, 1995,

alleging that the agency had discriminated against him as referenced

above. At the conclusion of the investigation, complainant requested

a hearing before an Equal Employment Opportunity Commission (EEOC)

Administrative Judge (AJ). The AJ issued a Recommended Decision (RD)

without a hearing, finding no discrimination.

The record shows that complainant had an approximately 20 year

employment history with the agency, and that he had been disciplined

numerous times regarding his illegal drug use which he conceded caused

his excessive absenteeism. This discipline was progressive and included

several proposed removal actions which were later reduced to suspensions.

The last proposed removal action resulted in a Last Chance/Firm Choice

settlement agreement, executed in June 1993, wherein complainant agreed

to substantially improve his attendance and to enroll in a rehabilitation

program for his drug addictions. However, when complainant had excessive

unscheduled absences during a subsequent three month period, November

1994 to February 1995, admitted to be the consequence of illegal drug

use, the agency issued a notice of proposed termination which stated that

complainant had violated the terms of the June 1993 Last Chance agreement.

Complainant responded by notifying the agency of his enrollment in

a drug rehabilitation program. A Letter of Decision, dated March 20,

1995, ratified the agency's proposed termination action, and complainant

was terminated effective April 8, 1995. Complainant argues that the

agency's reasons are pretextual, and contends that he was terminated

due to animus toward him based on his race, color, and drug addiction

disability, and because the agency failed to offer him a reasonable

accommodation for his disability.

The AJ concluded that complainant failed to establish a prima facie case

of race or color discrimination because he did not provide any evidence

to demonstrate that similarly situated employees not in his protected

classes were treated differently under similar circumstances. See

McDonnell Douglas v. Green, 411 U.S. 792 (1973). Specifically, the AJ

noted that no employee identified by complainant had an attendance record

nearly as poor as that of complainant, and that those who had the worst

records in the identified group of comparators were in the same protected

classes as complainant. The AJ was further persuaded that the decision

to terminate complainant was not motivated by discriminatory animus

given the use of progressive discipline for the same problem over the

course of many years, and also because the record fully substantiated

complainant's continued significant attendance deficiencies in violation

of the Last Chance agreement.

The AJ also concluded that complainant failed to establish a prima facie

case of disability discrimination because the Commission's regulations

at 29 C.F.R. �1630.3(a) specifically exclude employees currently engaged

in the illegal use of drugs from the definition of an �individual with

a disability.�<2> See generally Prewitt v. U.S. Postal Service, 662

F.2d 292 (5th Cir. 1981); Bridges v. U.S. Postal Service, EEOC Appeal

No. 01891679 (January 24, 1990). As noted above, complainant admits

that his unscheduled absences were due to illegal drug abuse problems.

Moreover, it is well established that enrolling in an "after-the-fact"

treatment program, as complainant has done here, does not entitle him to

reasonable accommodation under the Rehabilitation Act. See 29 C.F.R. �

1630.3(b); Lea v. Department of Treasury, EEOC Petition No. 03970018

(July 13, 1997).

The agency's FAD adopted the AJ's RD. Complainant makes no new

contentions on appeal, and the agency requests that we affirm the FAD.

The Commission finds that the AJ's recommended decision sets forth the

relevant facts and properly analyzes the case using the appropriate

regulations, policies and laws. Based on the evidence of record,

the Commission discerns no basis to disturb the AJ's finding of no

discrimination. Accordingly, it is the decision of the Commission to

AFFIRM the agency's FAD.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not discussed in this decision, the Commission AFFIRMS the agency's FAD

implementing the AJ's RD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

August 3, 2000 ____________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.