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