Johnnie H. Clay, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionJul 17, 2001
01A04926 (E.E.O.C. Jul. 17, 2001)

01A04926

07-17-2001

Johnnie H. Clay, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


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