01973540
03-28-2000
Tyrone Murray, Sr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Tyrone Murray, Sr. v. United States Postal Service
01973540
March 28, 2000
Tyrone Murray, Sr., )
Complainant, )
) Appeal No. 01973540
v. ) Agency No. 1D-211-1056-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of religion (unspecified), reprisal (prior EEO activity) and
physical disability (shoulder injury), 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,<1> as amended, 29 U.S.C. � 791, et seq.<2>
Complainant alleges he was discriminated against when, on December 27,
1995, and January 11, 1995, he received Absence Inquiry Letters (Letters).
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the FAD as MODIFIED.
The record reveals that during the relevant time, complainant was
employed as a PS-05 Distribution Clerk, at the agency's Baltimore,
Maryland Main Post Office (facility).<3> Complainant alleged that
although he suffered a shoulder injury which caused an absence from work,
he was issued the Letters seeking documentation of the reasons for his
absence due to discrimination on the above-stated bases. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on March 19, 1996. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD initially found that complainant failed to establish a prima
facie case of religious discrimination. In so finding, the FAD found
that complainant presented no evidence which indicated that his religion
was a factor in the issuance of the Letters, or that his Attendance
Control Supervisor was aware of complainant's religion when she issued
the Letters. The FAD further found that complainant failed to establish
a prima facie case of reprisal, as although complainant engaged in prior
EEO activity in 1990 and 1992, he failed to demonstrate a nexus between
his EEO activity and the Letters. The FAD further found that given the
length of time between complainant's prior EEO activity and the instant
claim, it was unlikely that a nexus existed. Finally, the FAD found that
although complainant has a shoulder injury, he failed to present evidence
that his impairment substantially limited any major life activities.
The FAD further found that there was no nexus between his impairment and
his ability to follow the facility's attendance requirements, and that all
facility employees were required to comply with attendance requirements.
Neither complainant nor the agency has made arguments on appeal.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981), and Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases), the Commission initially agrees with
the agency that complainant failed to establish a prima facie case of
religious discrimination. In reaching this conclusion, we note that
there is no evidence that complainant was issued the Letters due to his
religious beliefs, that the Attendance Control Supervisor knew what
complainant's religion was at the time she issued the Letters or any
other evidence which would give rise to an inference of discrimination.
The Commission further agrees with the FAD's finding that complainant
failed to establish a causal connection between his prior EEO activity and
the issuance of the Letters. Cook v. United States Postal Service, EEOC
Appeal No. 01964367 (April 30, 1999); Hochstadt, supra. In so finding,
we note that the approximately three years between complainant's EEO
activity in 1992 and the issuance of the Letters demonstrates that it
is unlikely the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive can
be inferred. Drummond v. Department of the Army, EEOC Petition No.
03990069 (March 6, 2000); Grant v. Bethlehem Steel Corp., 622 F.2d 43
(2nd Cir. 1980).
In addition, the Commission finds that even assuming that complainant
established a prima facie case of disability discrimination, the agency
articulated legitimate, nondiscriminatory reasons for issuing the Letters.
We find sufficient evidence in the record to support the testimony of
facility Attendance Control Supervisors that all facility employees
are required to comply with attendance requirements, and complainant
received the Letters in December of 1995 and January of 1996 as he had
not reported to work since June 19, 1995,<4> but had failed to contact
his supervisor or submit the proper medical documentation to substantiate
his lengthy absence. As such, the Letters were issued pursuant to the
agency's Employee and Labor Relations Manual requiring complainant to
submit adequate documentation in lieu of being placed in an Absent without
Leave status. The Commission further finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. Therefore,
after a careful review of the record, and arguments and evidence not
specifically addressed in this decision, the FAD is AFFIRMED AS MODIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) 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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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:
March 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time, the
ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of
disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2 On 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.
3 The Commission notes that in his complaint dated March 19, 1996,
complainant alleged that due to the above-stated bases, the agency
discriminated against him on nine (9) other allegations. However, the
agency dismissed these nine other claims on the grounds that complainant
failed to seek EEO Counseling in a timely manner, and the Commission
affirmed the agency's determination. See Murray v. United States Postal
Service, EEOC Appeal No. 01964578 (January 27, 1998); aff'd as modified,
EEOC Request No. 05980324 (November 4, 1999). As such, only the two
claims accepted for investigation by the agency are before the Commission.
4 The record reflects that on June 19, 1995, complainant filed a Form
CA-2 claim for benefits under the Federal Employees Compensation Act.