01A13337
08-22-2002
John W. Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
John W. Green v. United States Postal Service
01A13337
August 22, 2002
.
John W. Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A13337
Agency No. 4C-175-0030-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
On June 14, 2000, complainant filed a formal complaint alleging that
he was discriminated against on the basis of disability (disc, back,
alcoholism) when on January 16, 2000, he received a letter stating that
he was not qualified for Associate Supervisor Program (ASP) training.
During the relevant time, complainant was employed as a Rural Carrier
at the agency's Blue Bell Post Office facility in Pennsylvania. By way
of background, the record reflects that complainant first applied for
the ASP training which was scheduled to start in January 1997. Although
complainant scored well on the tests and the written evaluation, he was
judged �Not Qualified� because he failed to properly complete his Postal
Service (PS) Form 991. Complainant applied again in May 1998 and was
again told that he failed to properly complete his PS 991. In December
1998, complainant again applied and received a rating of �Qualified.�
On February 5, 1999, complaint was interviewed but not selected. He was
placed on a list which was to be used for future openings.
The record reveals that complainant began experiencing back pain and
was diagnosed as having a herniated disc. He missed work for a month
while participating in physical therapy sessions. Complainant testified
that in July 1999, he received a call from the Training Manager (TM1),
congratulating him on being selected for ASP training. Complainant
contends that he told the Postmaster (P1), but P1 indicated he was not
pleased that complainant had been selected. Approximately a week later,
TM1 informed complainant that he would not be receiving the training
due to a change in staffing needs.
Complainant reapplied for ASP training in November 1999. He was rated
�Not Qualified.� Complainant contends that he submitted the exact same PS
Form 991 which received a �Qualified� rating the previous time. On January
31, 2000, complainant sought EEO counseling. Subsequently, on June 14,
2000, complainant filed his instant complaint alleging discrimination on
the basis of disability when he was found not qualified for ASP training
in January 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.
In its FAD dated March 22, 2001, the agency found no discrimination.
Specifically the FAD concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Namely, the complainant was not
selected for ASP training because of his conduct and work performance.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.<1>
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether s/he has
demonstrated by preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id.
Here, the Supervisor Customer Service (�SCS�) stated that complainant
was found not acceptable for ASP training in January 2000 based on
complainant's conduct outside the Post Office, specifically complainant's
driving privileges currently were suspended for one year for a second
offense of Driving Under the Influence. Both the SCS and P1 averred
that complainant also was viewed as failing to demonstrate managerial
potential as a result of frequently causing dissension on the work floor
and showing, at best, average performance. Based on the foregoing,
we find that the agency has articulated legitimate, nondiscriminatory
reasons for its decision not to select complainant for ASP training.
After a thorough review, we find that complainant failed to establish that
the agency discriminated against him on the basis of disability. We find
that complainant has failed to present sufficient evidence to show that
the agency's articulated reasons were a pretext for discriminatory animus.
Therefore, after a careful review of the record, including complainant's
contentions, and arguments and evidence not specifically addressed in
this decision, we AFFIRM the agency's final decision.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2002
__________________
Date
1 Because we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, we do not reach the issue of
whether complainant is a qualified individual with a disability.