01974210
10-08-1999
Marcus L. Ware, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marcus L. Ware v. United States Postal Service
01974210
October 8, 1999
Marcus L. Ware, )
Appellant, )
)
v. ) Appeal No. 01974210
) Agency No. 4G-770-1328-96
William J. Henderson, ) Hearing No. 330-97-8016X
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On April 28, 1997, Marcus L. Ware (hereinafter referred to as appellant)
filed a timely appeal from the March 27, 1997, final decision of the
United States Postal Service (hereinafter referred to as the agency)
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. Appellant received the final agency decision
on March 31, 1997. Accordingly, the appeal is timely filed (see 29
C.F.R. �1614.402(a)) and is accepted in accordance with EEOC Order
No. 960, as amended. For the reasons that follow, the agency's decision
is AFFIRMED.
The issue presented in this appeal is whether the appellant has proven, by
a preponderance of the evidence, that the agency discriminated against
him on the bases of race/color (black) and sex when he was removed
effective April 12, 1996.
Appellant filed a formal complaint on May 4, 1996. Following an
investigation, appellant requested a hearing before an EEOC Administrative
Judge (AJ). A hearing was held in January 1997, and the AJ issued a
Recommended Decision finding no discrimination. The agency adopted the
AJ's decision as its final decision.
At the time of the events herein, appellant worked as a Transitional
Employee in Houston, Texas.<1> On April 8, 1996, the agency issued
him a notice of removal for "unsatisfactory work performance--failure
to safely perform your duties resulting in an at-fault accident."
Specifically, in February 1996, appellant was collecting mail when
he struck a concrete barrier with his vehicle, causing damage to the
left side. Upon his return to the station, he reported the accident and
acknowledged his responsibility.<2> In a memorandum dated June 13, 1995,
the District Manager (DM) had established a policy that all non-career
employees involved in an accident should not be re-hired or converted
to career status and those with accidents should not be retained.
Appellant stated that he was aware of this policy.
Appellant argued that, since he was honest about the accident and the
damage was minor, he should not be removed. The AJ found that the agency
articulated a legitimate, nondiscriminatory reason for its action, i.e.,
it followed the DM's policy. As a transitional employee, appellant
was in a non-career status, and because he was involved in a at-fault,
preventable accident, he was subject to the DM's policy.
In her decision, the AJ noted that appellant had identified comparative
employees, but found that none were similarly situated to him, e.g.,
they worked at other stations or were involved in accidents that were not
deemed preventable. She found that the DM's policy was fairly applied
and only affected appellant when he had the accident following issuance
of the DM's policy. The AJ concluded that appellant did not demonstrate
that the agency's reason was based on a prohibited factor or animus.
After a careful review of the record, the Commission finds that the
AJ correctly determined that appellant was not subjected to race/color
and sex discrimination with regard to his removal. The Commission notes
that while the AJ found that appellant failed to established a prima
facie case on the basis of race/color because he did not show that he
was treated differently than similarly situated employees, appellant
needed only to present evidence which, if unrebutted, would support
an inference that the agency's actions resulted from discrimination.
See O'Connor v. Consolidated Coin Caters Corp., 116 S.Ct. 1307 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,
EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Nevertheless, based on the AJ's further analysis and our review of the
record, we find no reason to disturb the ultimate decision of the AJ
that the agency did not discriminate against appellant. The AJ found
that neither appellant, nor the record, demonstrated that the agency's
action was based on a prohibited reason.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(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 this 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 this 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 this 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:
Oct. 8, 1999
DATE Carlton Hadden, Acting Director
1A transitional employee is in a non-career status.
2The record shows that appellant had two previous vehicle accidents,
one industrial accident, and injured his finger on another occasion.