01974356
11-05-1999
Ronald T. Jones, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Ronald T. Jones, )
Appellant, )
) Appeal No. 01974356
v. ) Agency No. 4F-920-1137-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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.
Accordingly, the appeal is accepted in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found no discrimination
based on race (Black), color (Black) and sex (male) when on December 22,
1994, appellant was ordered to submit to a Fitness-for-Duty examination
without explanation, on either December 22, 1994, or January 22, 1995,
a co-worker allegedly made defamatory remarks about appellant,<1>
and on January 27, 1995, appellant was ordered to submit to a second
drug screening.
BACKGROUND
Appellant, a Distribution Clerk, claimed that as a result of a Co-worker's
statements, he was ordered to submit to a Fitness-for-Duty examination
on December 23, 1994. The Station Manager (the Manager) testified that
he did not hear defamatory remarks about appellant from a co-worker.
The Manager declared that he suspected that appellant was under the
influence of drugs based on his demeanor. The Manager stated that in
accordance with agency guidelines for treatment of employees under the
apparent influence of alcohol or drugs, he notified his supervisor and
ordered appellant to undergo a Fitness-for-Duty exam. Appellant tested
positive for a controlled substance. In accordance with the national
collective bargaining agreement he was placed on Emergency Off-Duty Status
and ordered to undergo a second drug screening test on January 27, 1995.
Appellant again tested positive. Appellant tested negative on April
5, 1995, and was cleared by the District Medical Officer to return to
work on April 12, 1995 On that date appellant signed a Last Chance
Settlement in lieu of removal. He contends that he was kept in a leave
without pay status until April 1995, whereas other employees testing
positive were retested after 30 day periods.
In his sworn affidavit, the Manager testified that in December 1994,
he also recommended testing a Hispanic female employee for drug use
based on her demeanor. The Labor Relations Specialist testified that
the Hispanic female tested positive for controlled substances and
was accorded the same process and treatment as appellant. The record
indicates that appellant entered an addictive medical rehabilitation
program in January 1995. The Medical Officer at the facility reported
to the agency that appellant tested negative for controlled substance
use and would be fit to return to work in April 1995.
In its final decision the agency dismissed the complaint finding that
appellant failed to prove that he was treated differently than similarly
situated employees.<2>
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimination. If appellant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
This established order of analysis, in which the first step normally
consists of determining the existence of a prima facie case, need not
be followed in all cases. Where the agency articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether appellant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 11, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., the manager testified
that he did not hear any defamatory remarks about appellant. He observed
appellant's demeanor, determined that his behavior was consistent with
alcohol or drug use, and based on that observation ordered appellant
to submit to a Fitness-for-Duty exam and informed the supervisor.
Appellant tested positive for a controlled substance. Appellant was
required by the national collective bargaining unit agreement to test
negative before being allowed to return to work. Thus, appellant was
ordered to submit to a second drug screening exam. Appellant tested
positive on the second drug test, and entered a program at a medical
facility. The Medical Officer determined that appellant tested negative
and would be able to return to work in April 1995.
The burden returns to appellant to demonstrate that the agency's reason
was a pretext for discrimination, that is, that the agency was more likely
motivated by discriminatory reasons. Burdine, 450 U.S. at 253. Appellant
provided no evidence in support of his claim that a co-worker defamed him,
or that any comment by a co-worker caused the Manager to suspect that
appellant was under the influence of illegal drugs. Testimony reveals
that a Hispanic female was also ordered to submit to a Fitness-for-Duty
exam at the same time as appellant. Appellant fails to prove that he
was treated differently than similarly situated employees based on race,
color or sex, and has not proven that the agency's articulated reasons
were a pretext for discrimination.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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
Nov. 5, 1999
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 Appellant asserted that a co-worker told the Station Manager that
appellant was a drug addict, a drug dealer and was involved in sexual
activities during work hours. Appellant asserted that the Station
Manager repeated these statements to his supervisor.
2 Initially, the agency dismissed the complaint for untimely EEO counselor
contact. Appellant appealed and the Commission remanded to the agency
in EEOC Number 01960213.