01970123
05-13-1999
Tyler Strickland, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region),) Agency.
Tyler Strickland v. United States Postal Service
01970123
May 13, 1999
Tyler Strickland, )
Appellant, )
) Appeal No. 01970123
v. ) Agency No. 1J-601-1176-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Region),)
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision concerning
his Equal Employment Opportunity (EEO) complaint of unlawful employment
discrimination in violation of � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. Appellant alleges that he was
discriminated against on the basis of physical disability (high blood
pressure) when he was issued a removal notice. The appeal is accepted
in accordance with EEOC Order No. 960.001.
Appellant filed a formal EEO complaint on May 25, 1995, alleging that
the agency discriminated against him as referenced above. The agency
accepted the complaint and conducted an investigation. At the conclusion
of the investigation, appellant initially exercised his right to a hearing
before an EEOC Administrative Judge but subsequently withdrew his hearing
request and requested a final agency decision on the evidence of record.
On September 23, 1996, the agency issued its final decision, finding
no discrimination. It is from this decision that appellant now appeals.
At the time of the alleged discrimination, appellant was working as
Mail Handler in the culling unit of the agency's Carol Stream, Illinois
Processing and Distribution Center. Having determined that appellant
falsified his work hours no less than twenty six times between July
16, 1994, and August 21, 1994, the agency issued a removal notice on
September 9, 1994. Appellant alleges that in issuing the removal notice,
the agency treated him differently than other similarly situated employees
on account of his physical disability.
In response, the agency states that: it was unaware of appellant's
disability; appellant never informed management that he was unable
to work on account of a disability; and appellant never requested an
accommodation. In addition, the agency states that the two employees with
whom appellant compares himself were not similarly situated to appellant.
Specifically, Comparative Employee No. 1 (C1) had a record of one incident
of an un-excused absence. C1 was charged with the unauthorized absence
and issued a Letter of Warning. Comparative Employee No. 2 was charged
with use of the wrong time clock, a charge which, although levied on
appellant, was not the basis for his removal.
The agency further found that appellant, when confronted with a printout
of his card key usage, changed his explanation concerning his whereabouts
on August 21, 1994; failed to explain his un-excused absences on the
twenty five other dates; and was unable to refute management's allegation
that he was using two different time-cards in order to mask his routine
disappearances from the building.
Appellant's complaint of discrimination constitutes a claim of disparate
treatment which is properly analyzed under the three tiered analytical
framework outlined in McDonnell Douglas v. Green, 411 U.S. 792 (1973).
See also Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 711, 715-716
(1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253-256 (1981).
Applying this standard, we find that appellant has failed to establish a
prima facie case of disability discrimination. In addition to the fact
that there is no evidence in the record to establish that appellant has
a disability within the meaning of the Rehabilitation Act, there is also
no adequate showing that other similarly situated employees were treated
more favorably than appellant, nor was there any action on the part of
the agency which would raise the inference of discrimination.
After a careful review of the record, we agree with the agency
that appellant failed to establish a prima facie case of disability
discrimination. We also note that appellant has failed to present
evidence that more likely than not, the agency's articulated reason for
its actions was a pretext for discrimination.
Accordingly, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
May 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations