Willie T. Cravin, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (P/W Region), Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01974623 (E.E.O.C. Jan. 15, 1999)

01974623

01-15-1999

Willie T. Cravin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (P/W Region), Agency.


Willie T. Cravin v. United States Postal Service

01974623

January 15, 1999

Willie T. Cravin, ) Appeal No. 01974623

Appellant, ) Agency No. 4F-900-1203-95

v. ) Hearing No. 340-96-3714X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(P/W Region), )

Agency. )

DECISION

Appellant timely initiated an appeal from a final agency decision

("FAD") 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., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. Section 621 et seq. The appeal

is accepted pursuant to the provisions of EEOC Order No. 960.001.

The issue presented is whether appellant was discriminated against based

his sex, race (African-American), color (black) and age (55) when he was

charged Absent Without Official Leave ("AWOL") beginning July 7, 1995.

Appellant, the Manager of Customer Services, was selected to serve as a

juror for a highly publicized criminal case; he was dismissed from the

jury after serving for approximately six months. Upon his release from

jury duty in June 1995, appellant requested 72 hours of annual leave,

which was approved. On June 17, 1995, appellant requested 312 hours of

sick leave on the basis that his jury sequestration had resulted in a

back injury which left him totally incapacitated for work. In support of

his request, appellant submitted a note from a chiropractor. However,

the agency does not generally accept substantiation from chiropractors.

Further, at that time, appellant was appearing on a number of news and

other television shows. His request for sick leave was denied and the

agency issued him written notification to report for a fitness-for-duty

examination on July 5, 1995. Appellant failed to appear for the

examination, later stating that as a result of the large volume of

mail he was receiving, he did not open the notification until after

the scheduled date for the examination. On July 21, 1995, appellant

was again notified to report for a fitness-for-duty examination to be

conducted on July 26, 1995. The notification stated that it constituted

an official instruction with which appellant must comply and that failure

to comply would result in disciplinary action, including removal.

After appellant failed to appear for the examination, the agency

issued him a Notice of Proposed Removal which ultimately was held in

abeyance pending the results of a physical examination, which appellant

underwent on September 7, 1995. This examination found that appellant

was fit for duty provided that appropriate accommodations were made.

After appellant's treating physician indicated that appellant could return

to full duty on September 29, 1995, the agency advised appellant that he

could request sick leave for that period. A second treating physician

then submitted a note stating that appellant had a depressive disorder

but could return to work on October 15, 1995.

Ultimately, all initial charges of AWOL and Leave Without Pay ("LWOP")

were reversed by the agency and adjustments were made to appellant's

records. Appellant retired from the agency on April 6, 1996, and was

paid a lump sum for his remaining leave hours.

Appellant timely sought EEO counseling and filed his instant EEO

complaint, in which he alleged that, as a result of the agency's failure

to grant him sick leave in a timely fashion and its actions in initially

charging him AWOL, he suffered emotional distress. The agency accepted

and investigated the complaint, and appellant timely requested a

hearing before an EEOC Administrative Judge ("AJ"). After a hearing,

the AJ issued a recommended decision ("RD") finding no discrimination.

The AJ questioned whether appellant could establish a prima facie

case of discrimination in that he was unable to show that any other

similarly situated person outside his protected classes was treated more

favorably by the agency. Assuming that appellant could establish a prima

facie case, the AJ found that the agency had articulated a legitimate

nondiscriminatory reasons for its actions, i.e. that the initial placement

of appellant in AWOL or LWOP status, and the delay in paying him for the

leave taken during this period, was the result of appellant's failure to

respond to direct orders to report for fitness-for-duty examinations.

While appellant argued that other employees outside of his various

protected classes were permitted to use large amounts of leave prior

to their retirements, and were not required to undergo fitness-for-duty

examinations, the AJ found that the agency had reason to require further

medical substantiation from appellant, both because officials are not

required to accept notes from chiropractors and because of appellant's

frequent television appearances. The AJ found that appellant's failure

to report for the initial scheduled examination further justified the

agency's decision to place him on AWOL or LWOP until such time as an

examination was conducted. The AJ was not persuaded by appellant's claim

that he did not in fact receive pay for the full balance of leave hours

due him on retirement, but declined to "enter[] that thicket" on the

basis that appellant presented no evidence that any discrepancy was the

result of discrimination based on his membership in a protected class.

In its FAD, the agency adopted the RD. On appeal, appellant presents

some of the same arguments made before the AJ, including that the agency

should not have penalized him for failing to attend the second scheduled

examination because he had informed the agency that he had an appointment

with his own physician on that day. Appellant also argues that agency

officials wanted to cause him hardship because of his service on the

jury and because they thought he was making a lot of money from his

television appearances.

However, after a careful review of the record on appeal, the Commission

finds that the RD adequately set forth the relevant facts and analyzed

the appropriate regulations, policies and laws. The Commission discerns

no basis to disturb the AJ's finding that appellant failed to establish

discrimination. Therefore, it is the decision of the Commission to

AFFIRM the FAD.

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:

Jan 15, 1999

________________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations