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.