Marcus L. Ware, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01974210 (E.E.O.C. Oct. 8, 1999)

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.