01986303
07-10-2000
Ricky Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ricky Thompson v. United States Postal Service
01986303
July 10, 2000
Ricky Thompson, )
Complainant, )
)
v. ) Appeal No. 01986303
) Agency No. 1F-951-0001-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On August 15, 1997, Ricky Thompson (hereinafter referred to as
complainant) filed a timely appeal from the July 17, 1998, 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., and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �� 791, 794(c). The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the bases of race (black), disability (physical (thyroid condition)
and mental (depression)), and sex when he was removed effective August
30, 1997.
Complainant filed his formal complaint on November 11, 1997. Following an
investigation, he was given notice of his right to request a hearing or
an immediate final agency decision (FAD). Complainant did not respond,
and the agency issued a FAD, finding no discrimination.
Complainant worked at the Salinas, California, PD&C as a clerk.
He was removed from his position for unacceptable conduct, i.e., being
intoxicated at work; AWOL (absence without leave) from his work area;
and AWOL from work for 136 hours between June 19 and July 18, 1997.
He claimed that he was not intoxicated but experiencing effects of
prescribed medications for his physical and mental conditions and that he
had provided excuses for his absences.<2> In his complaint, complainant
alleged that the agency failed to accommodate his disabilities because
it did not assign him to the day shift and that comparative employees,
not of his protected classes, were treated more favorably.<3>
In response, his Supervisor, Distribution Operations, (S1) stated
that several managers smelled alcohol on complainant's breath, that his
absences were not properly excused, that he considered complainant's past
discipline in issuing the removal notice, and that complainant never
gave him a request for assignment to the day shift.<4> With regard to
other removal actions by S1, he stated that he had issued notices of
removal to two blacks, one white, and one Asian employee and that other
employees cited by complainant had not engaged in similarly egregious
conduct as complainant.
In his statement in support of his appeal, complainant repeats his claim
that he was not intoxicated and that his absences were excused. He also
claims that his extensive on-the-job injuries have led to limitations
on his physical movements and caused severe pain.
Claim Based on Race and Sex
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Initially, for complainant to prevail,
he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Following this established order of analysis is not always necessary
where the agency articulates an explanation for its actions. In such
cases, the factual inquiry can proceed directly to the third step
of the McDonnell Douglas analysis--the ultimate question of whether
complainant has shown by a preponderance of the evidence that the
agency's action was motivated by discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
It is complainant's burden to demonstrate by a preponderance of the
evidence that the agency's action was based on prohibited considerations
of discrimination, that is, its articulated reason for its action
was not its true reason but a sham or pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its action removing complainant. The record amply demonstrates that
complainant's conduct was unacceptable, in that, he was intoxicated at
work and had a significant record of unexcused absences. The record
shows that S1 dismissed other employees not of complainant's protected
classes, as well. Further, with regard to complainant's request
for work during the day, S1 stated that he never received a request
to assign complainant to the day shift. Complainant has not shown
that the agency's articulated reasons for his removal were not true,
were based on prohibited considerations, or that he was singled out
for disparate treatment. We find therefore that the agency did not
discriminate against complainant.
Claim Based on Disability
As a threshold matter, complainant must show that he is a person with
a disability within the meaning of the Rehabilitation Act.<5> This
is defined as one who has, has a record of having, or is regarded as
having an impairment that substantially limits one or more major life
activities.<6> 29 C.F.R. � 1630.2(g). Major life activities include
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i).
Complainant asserts that he is a person with a disability based on his
thyroid condition and depression but he failed to submit evidence or
documentation in support of his claimed disabilities. Other than his
assertions, there is nothing in the record showing that he has, has a
record of, or is regarded as a person with the disability due to his
thyroid condition or depression. Since complainant failed to submit
medical or other evidence documenting that his impairments substantially
limit a major life activity, we find that complainant is not a person
with a disability under the Rehabilitation Act. Even if we assume that
complainant is a qualified person with a disability, as stated above,
the agency articulated legitimate, nondiscriminatory reasons for its
actions, which complainant failed to demonstrate were pretextual or a
sham for prohibited discrimination.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
07-10-00
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________ _______________________
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Also, documents in the record show that complainant had been under
treatment for substance abuse but was released to return to work as of
August 1, 1997.
3Although he did not raise disability (alcoholism) discrimination,
complainant also complained that he was not offered a "last chance
agreement." To the extent that complainant contends that he was entitled
to a firm choice/last chance agreement, the Commission has determined that
the 1992 amendments to the Rehabilitation Act do not require an agency
to provide an employee a firm choice between rehabilitation and removal.
Johnson v. Department of the Interior, EEOC Petition No. 03940100 (March
28, 1996); fn. 6, infra.
4Complainant asserted that it was given to the plant manager, who was not
interviewed for the investigation report. Complainant provided a letter
dated May 9, 1997, from a psychologist, who stated that he believed that
daytime work hours would assist his treatment for substance abuse.
5See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999); Sutton
v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel
Service, Inc., 527 U.S. 516 (1999).
6The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.