01A04926
07-17-2001
Johnnie H. Clay, Jr. v. United States Postal Service
01A04926
July 17, 2001
.
Johnnie H. Clay, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A04926
Agency No. 4-H-390-0149-99
Hearing No. 130-A0-8199X
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. Complainant alleged that he was discriminated
against on the basis of his disability (back strain) when his name was
removed from all Hiring Registers on March 24, 1999.
The record reveals that during the relevant time, complainant was an
applicant at the agency's general mail facility in Jackson, Mississippi.
Believing he was a victim of discrimination, complainant sought EEO
counseling on March 24, 1999, and subsequently filed a formal complaint
on July 28, 1999. At the conclusion of the investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On May 12,
2000, the AJ remanded the complaint to the agency because of complainant's
noncompliance with the AJ's Order dated April 4, 2000.
In its FAD, that agency found no discrimination. The agency concluded
that complainant failed to show that he was a qualified individual
with a disability as defined by the Rehabilitation Act. In addition,
the agency noted that assuming arguendo complainant had established a
prima facie case of disability discrimination, they had articulated a
legitimate, nondiscriminatory reason for its actions. Specifically, the
agency stated that complainant had been previously terminated for just
cause and the action was upheld by an arbitration panel and the Merit
Systems Protection Board (MSPB). The agency also found that complainant
failed to provide any evidence that would demonstrate that the agency's
proffered reason was pretext for unlawful discrimination.
On appeal, complainant contends that he did establish a prima facie case
of disability discrimination because he has a 40 percent service-connected
disability. Complainant did not address the agency's proffered reason
for removing his name from the Hiring Registers. The agency requests
that we affirm its FAD.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
After a careful review of the record evidence, we find that the agency
properly found no discrimination. We do not reach the issue of whether
he is a qualified individual with a disability because even assuming
arguendo that he is, complainant has failed to establish that the agency's
proffered reason for its actions is a pretext for discrimination. The
record establishes that complainant was notified by letter dated February
4, 1999, that his name had been reached for employment consideration.
The letter noted that it was not an offer of employment, but an effort
to determine complainant's employment eligibility. The record also
establishes that complainant submitted the required documentation on
February 4, 1999. Complainant requested reinstatement to the list of
eligibles for the Flat Sorter Machine Operator on February 19, 1999.
Complainant was notified by letter dated March 2, 1999, to report for
MPFSM Pre-Hire dexterity training on March 8, 1999.
The record evidence further reveals that a letter dated March 5, 1999, was
mailed to complainant informing him that his name would be removed from
all postal registers due to his prior removal from the Postal Service
effective January 22, 1998, for just cause which had been upheld by
an arbitration panel. In addition, the Merit Systems Protection Board
upheld the action by an Initial Decision issued on May 9, 1998.
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
the agency stated that complainant was removed from the list of eligibles
due to his prior removal from the agency for just cause. The Commission
further finds that complainant failed to present evidence that other
former employees terminated for cause were treated more favorably or
otherwise established that the agency's articulated reasons for its
actions were a pretext for discrimination.
Therefore, after a careful review of the record, including complainant'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 (M0900)
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
July 17, 2001
__________________
Date