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.