John D. Whitt, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01982289 (E.E.O.C. Nov. 4, 1999)

01982289

11-04-1999

John D. Whitt, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John D. Whitt v. United States Postal Service

01982289

November 4, 1999

John D. Whitt, )

)

Appellant, )

) Appeal No. 01982289

v. ) Agency No. 1D-272104396

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

)

Agency. )

)

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of race (Caucasian), in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges

he was discriminated against when: (1) he was charged with being two

hours absent without leave (AWOL); and (2) he was issued a seven (7)

day suspension for improper conduct/being out of the facility without

authorization. The appeal is accepted in accordance with EEOC Order

No. 960.001. For the following reasons, the agency's decision is

AFFIRMED.

The record reveals that during the relevant time, appellant was

employed as a Mailhandler PS-04, at the agency's Greensboro, North

Carolina facility. Appellant alleged that he was treated differently

when compared to a similarly situated employee who was African American.

Believing he was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a complaint on December 22, 1996. At

the conclusion of the investigation, appellant failed to request either

a hearing or a final agency decision. We note too that the agency issued

a partial dismissal of four(4) other issues at the time that it accepted

two issues for investigation. It appears from the record that the four

dismissed issues were not appealed until the final agency decision was

issued on the remaining two issues.

The FAD concluded that appellant failed to establish a prima facie case

of race discrimination because he presented no evidence that similarly

situated individuals not in his protected class were treated differently

under similar circumstances. That is, the record indicated that an

African American employee was similarly placed on absence without leave

for failing to report for duty. In addition, appellant failed to provide

an affidavit to support any of his allegations of discrimination during

the investigation.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine,

450 U.S.248 (1981); United States Postal Service Board of Governors v.

Aikens, 460 U.S. 711, (1983), the Commission agrees with the agency that

appellant failed to present any evidence that more likely than not,

the agency's articulated reasons for its actions were a pretext for

discrimination. In reaching this conclusion, we note that appellant

failed to even testify in support of his contention that his absence

from work without proper authorization was not the true reason for the

disciplinary action taken against him.

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

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

not specifically addressed in this decision, 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:

11/4/99

DATE Carlton Hadden, Acting Director

Office of Federal Operations