Robert J. Taylor, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01970446 (E.E.O.C. Jan. 24, 2000)

01970446

01-24-2000

Robert J. Taylor, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.


Robert J. Taylor v. United States Postal Service

01970446

January 24, 2000

Robert J. Taylor, )

Complainant, )

)

v. )

) Appeal No. 01970446

William J. Henderson, ) Agency No. 4E-980-1078-95

Postmaster General, )

United States Postal Service )

(Pacific/Western Region), )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of race (Black) and mental disability (dyslexia),<1> 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,

et seq.<2> Complainant alleges that he was discriminated against when,

on December 12, 1994, he was informed that be would not be considered

for a career position. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the agency's decision

is AFFIRMED.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a casual worker at the agency's Bulk Mail Center in Seattle, Washington

but was discharged from that position "for cause." Approximately one

year later, in December, 1994, complainant inquired of the agency whether

he could be considered for a non-competitive career position under the

agency's special hiring program for persons with disabilities. The agency

responded that complainant would not be eligible for consideration for

any position because of the circumstances of his earlier termination.

Believing himself to be a victim of discrimination, complainant sought

EEO counseling and, subsequently, filed a complaint on April 3, 1995.

At the conclusion of the investigation, complainant requested that the

agency issue a final agency decision.

The FAD concluded that complainant failed to establish a prima facie case

of discrimination on the basis of race or disability because he presented

no evidence that similarly situated individuals not in his protected

classes were treated differently under similar circumstances. In

addition, the FAD concluded that the agency had articulated a legitimate,

nondiscriminatory reason for its action and that complainant had failed

to prove that the agency's reasons were pretexts for discrimination.

From the FAD, complainant brings the instant appeal. The agency requests

that we affirm the FAD.

ANALYSIS AND FINDINGS

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and its progeny, Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981) and St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993), the Commission agrees with

the agency that complainant failed to establish a prima facie case of

race or disability-based discrimination because he did not show that

similarly situated persons outside his protected groups had been treated

more favorably than he. Nor has complainant presented any other evidence

sufficient to establish a prima facie case of discrimination on either of

these bases. In reaching this conclusion, we note that the persons with

whom complainant sought to compare himself were not similarly situated in

that none of them had previously been terminated for cause by the agency.

See Tolar v. United States Postal Service, EEOC Appeal No. 01965083

(December 16, 1998)

The Commission also finds that complainant failed to prove, by a

preponderance of the evidence, that the agency's articulated reasons

for its actions were a pretext for discrimination. In this connection

we note that the record contains contemporaneously created evidence

that complainant was terminated from his casual position following

a confrontation between complainant and his supervisor during which

complainant: 1) refused to follow the supervisor's instructions; 2)

directed profane and threatening invective at the supervisor; and 3)

threw a box toward the supervisor in a manner which reasonably could be

regarded as assaultive. These are legitimate grounds for the agency to

decline to consider rehiring complainant.

CONCLUSION

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 (M1199)

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 (3O) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (2O) 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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

1/24/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

1/24/00

Date ________________________

Equal Employment Assistant

1The formal complaint incorrectly describes dyslexia as a physical disability.

2On 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.