03A10094
02-22-2002
Robert N. Ghantous, Jr., Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert N. Ghantous, Jr. v. United States Postal Service
03A10094
02-22-02
.
Robert N. Ghantous, Jr.,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A10094
MSPB No. CH-0752-00-0640-I-1
DECISION
On August 2, 2001, Robert N. Ghantous, Jr. (petitioner) filed a petition
with the Equal Employment Opportunity Commission (EEOC) asking for
review of the April 26, 2001 Merit Systems Protection Board's (MSPB)
final decision on his case. The Commission docketed the petition
as EEOC Petition No. 03A10094. Petitioner alleged that the agency
discriminated against him on the basis of his national origin (Lebanese)
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The petition is governed by the
provisions of EEOC Regulations, 29 C.F.R. � 1614.303 et seq. The MSPB
affirmed the United States Postal Service (agency) action, which found
no discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.
BACKGROUND
The record reveals that petitioner was a Supervisor in the Distribution
Operations Branch at the agency's Cincinnati Processing and Distribution
Center. It is undisputed that petitioner stopped reporting to work after
January 24, 2000. On February 24, 2000, the agency sent the petitioner
a letter instructing him to contact his supervisor. Petitioner failed
to respond. Thereafter, on April 25, 2000, the agency issued a notice
proposing to remove petitioner from his employment, effective June 10,
2000. The agency proposed his removal charging him with an unscheduled
absence from January 24 to March 8, and with absence without leave (AWOL)
from March 8 to April 25, 2000. The record shows that the agency received
a letter dated June 2, 2000 from the Drug and Alcohol Resolutions,
Inc. informing the agency that petitioner was incarcerated from January
27, 2000 to May 8, 2000 and transferred to the Hamilton County Sheriff's
Office on that date. The letter indicated that he was charged with �Being
Under the Influence� (DUI). He was removed on a charge of unauthorized
leave and AWOL on June 6, 2000.
Believing that he was a victim of discrimination, on June 13, 2000,
petitioner filed an appeal to the MSPB. After holding a hearing, the MSPB
administrative judge (AJ) affirmed the agency's action in terminating
petitioner's employment. She found that petitioner stopped working on
January 24, 2000. He did not take leave under the Family and Medical Leave
Act of 1993 (FMLA), and he exhausted his available leave. Petitioner
does not dispute that he did not return to work, but said that his wife
contacted the agency. The AJ found that the agency received no medical
documentation sufficient to support petitioner's absence and he was not
in an inpatient treatment program during the period of time charged in
this appeal, as he contends. The AJ considered the contentions but found
that petitioner was in a minimum security jail and that he had no earned
leave available to cover his absence from March 8 to April 25, 2000.<1>
On petition to the Commission, petitioner submits that he should be
excused because he was in a substance abuse treatment program and not
incarcerated. In response, the agency requests that the Commission concur
with the MSPB's decision that the agency did not discriminate against
petitioner. The agency also requests that the petition be rejected.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on national origin
(Lebanese) constitutes a correct interpretation of the applicable law,
regulation or policy directive and is supported by evidence in the record
as a whole. 29 C.F.R. � 1614.305(c). To prevail in a disparate treatment
claim such as this, petitioner must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The AJ found that petitioner is Lebanese and it is undisputed that
petitioner was qualified to do the essential functions of his employment
when he was terminated. The AJ concluded, however, that petitioner
failed to identify the ethnic identity of any of the other comparative
employees. Further, she found that the other employees were not similarly
situated since none had been incarcerated for six months or charged with
unauthorized absence for a period of three months.
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
The agency stated that he was removed for just cause and the efficiency
of the service after petitioner was absent from duty for three months,
had a past disciplinary record of a Letter of Warning for inappropriate
remarks to a subordinate employee, and because he was in a supervisory
position. The AJ concluded that the penalty of removal was within the
tolerable bounds of reasonableness and will promote the efficiency of
the service.
To ultimately prevail, petitioner must prove, by a preponderance
of the evidence, that the agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981); and Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997).
We agree with the AJ that a three-month absence from work without
communication with or response to inquiries from one's superiors is
misconduct for which any employee would reasonably be held accountable.
In this case, we find that petitioner failed to demonstrate by a
preponderance of the evidence that the agency's proffered reason was a
pretext for discrimination.
CONCLUSION
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 and upholding the removal. 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.
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
___02-22-02____________
Date
1The record reflects that while incarcerated, petitioner received
treatment for substance abuse.