Michael D. Hightower, Petitioner,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 1, 2001
03a10038 (E.E.O.C. Mar. 1, 2001)

03a10038

03-01-2001

Michael D. Hightower, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Michael D. Hightower v. United States Postal Service

03A10038

March 1, 2001

.

Michael D. Hightower,

Petitioner,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 03A10038

MSPB No. DA-0752-00-0056-I-2

DECISION

On December 20, 2000, petitioner filed a timely petition with the Equal

Employment Opportunity Commission asking for review of an Initial Decision

(ID) issued on November 15, 2000, by an Merit Systems Protection Board

(MSPB) Administrative Judge (AJ) concerning his claim of discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq.<1>

Petitioner, a part-time flexible (PTF) City Carrier at an agency

facility in Temple, Texas, alleged that he was discriminated against

on the bases of race (African-American) and color (black) when he was

removed from his position. Petitioner's position required that he have

a valid Commercial Driver's License (CDL) to allow him to drive two to

seven ton vehicles. A holder of a CDL is subject to random drug testing

under the regulations promulgated by the Department of Transportation

(DOT). Petitioner had a CDL. The record indicates that on November 24,

1998, petitioner was advised that he had been selected for a DOT random

drug test by a contract company who administers the test. Petitioner

failed the drug test and was placed in an off-duty status. The agency

directed petitioner to report for a pre-discipline discussion because of

the positive test result from the drug screen. At a meeting, petitioner

told the Deciding Official (DO) that he had used marijuana shortly before

the drug test. Petitioner also voluntarily sought assistance from the

agency's Employee Assistance Program (EAP). The Proposing Official

(PO) recommended that petitioner be terminated because he had failed

the drug test and was a short term employee. The PO also noted that he

was not comfortable with placing petitioner back on the street. The DO

considered the charge to be very serious and did not want the liability

of having an employee driving while under the influence. Accordingly,

the agency removed petitioner from his position effective March 5, 1999,

for unsatisfactory performance for violation of its regulations which

prohibit criminal conduct and for failure to meet the requirements of

his position by testing positive to a random drug test. On October 22,

1999, petitioner filed a mixed case appeal with the MSPB. After a hearing

held on August 4, 2000, the MSPB AJ issued her ID affirming the agency's

removal action.

As to petitioner's claim of discrimination, the MSPB AJ found that

he failed to establish that the agency's action was based upon a

discriminatory animus toward his race or color. The MSPB AJ found that

petitioner failed to establish a prima facie case of discrimination

in that the two proffered comparators were not similarly situated

to petitioner. In particular, comparator1 allegedly arrived at

work while under the influence of alcohol and was merely sent home.

The AJ found that comparator1 was not similarly situated because the

incident occurred prior to the application of the regulations regarding

drug tests and once comparator1 was tested, his results were negative

for drugs. Comparator2 was proffered to show that not all PTFs were

required to have CDLs. The MSPB AJ found that all PTFs hired in 1996

or after were required to have CDLs and comparator2 was employed at the

Temple Post Office prior to that date.<2> Finally, the AJ noted that

petitioner could not show that any employee outside of his protected

class had been treated differently after failing a random drug test.

Further, the MSPB AJ noted that although petitioner tried to show that

the Postmaster had previously been found to have discriminated against an

employee, however, the Postmaster was neither the proposing official nor

the deciding official in petitioner's case. Finally, the MSPB AJ found

that the DO testified to the fact that his decision to remove petitioner

was based upon the seriousness of the charge and not his protected bases.

Accordingly, the MSPB AJ found that petitioner failed to establish that

his removal was the result of discrimination.

Petitioner filed his petition for review of the MSPB's decision. In his

petition, he argues that the MSPB AJ improperly refused to allow him to

call certain witnesses and impeded his ability to question the witnesses

who were called on to testify. Petitioner further argued that the

purported PO and DO were not the ones who initiated the action against

him but rather the Postmaster who had violated Title VII was the official

who acted against him.

EEOC Regulations provide that the Commission has jurisdiction over

mixed case appeals on which the MSPB has issued a decision that makes

determinations on allegations of discrimination. 29 C.F.R. � 1614.303

et seq. The Commission must determine whether the decision of the

MSPB with respect to the allegation of discrimination constitutes an

incorrect interpretation of any applicable law, rule, regulation or policy

directive, or is not supported by the evidence in the record as a whole.

29 C.F.R. � 1614.305(c).

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to CONCUR with the final decision

of the MSPB finding no discrimination. The Commission finds that the

MSPB's decision constitutes a correct interpretation of the laws, rules,

regulations, and policies governing this matter and is supported by the

evidence in the record as a whole. The Commission notes that the record

supports the MSPB AJ's rulings as to witnesses.

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court,

based on the decision of the Merit Systems Protection Board, within

thirty (30) calendar days of 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.

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

March 1, 2001

__________________

Date

1 On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all Federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 29 C.F.R. Part 1614 in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.

2The record indicates that comparator2 was employed at the Temple Post

Office, then transferred to another post office. He was reassigned to

the Temple Post Office in 1996.