01a01376
08-14-2002
Lonnell Sharp v. United States Postal Service 01A01376 08-14-02 .Lonnell Sharp, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lonnell Sharp v. United States Postal Service
01A01376
08-14-02
.Lonnell Sharp,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01376
Agency No. 1G-771-1201-94
Hearing No. 330-98-8197X
DECISION
On December 1, 1999, Lonnell Sharp (hereinafter referred to as
complainant) initiated a timely appeal to the Equal Employment
Opportunity Commission (Commission) with regard to his complaint of
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq; and � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
by this Commission in accordance with 29 C.F.R. � 1614.405. Based upon
a review of the record, and for the reasons stated herein, it is the
decision of the Commission to AFFIRM the final agency action.
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that he was discriminated against on the bases of his
race (black), sex (male), and disability (addict, alcoholic, stress)
when he was removed effective June 24, 1994.
Complainant filed a formal EEO complaint raising the above-referenced
allegation of discrimination. The agency accepted complainant's complaint
for processing, and conducted an investigation with regard to the matter
at issue.<1> Following a hearing, an Administrative Judge (AJ) issued a
decision, finding that complainant was not subjected to discrimination
as alleged. Specifically, the AJ stated that complainant violated
the terms of a last chance agreement by being absent without leave
(AWOL) on two occasions. Further, the AJ stated that there was no
causal relationship between the removal and any of the alleged bases.
Subsequently, the agency issued a final action implementing the AJ's
decision. It is from this decision that complainant now appeals.
After a careful review of the record, the Commission finds that the AJ
correctly determined that complainant was not subjected to discrimination
with regard to the matter at issue. The Commission notes that while
the AJ stated, in part, that complainant failed to establish a prima
facie case because he did not show that he was treated differently than
similarly situated employees, complainant must only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. See O'Connor v. Consolidated
Coin Caters Corp., 116 S.Ct. 1307 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,
n. 4 (September 18, 1996).
Nevertheless, a review of the record shows that, even assuming
that complainant had established a prima facie case of race, sex,
and disability discrimination, he failed to show that the agency's
stated reason for the action was pretextual.<2> As stated by the AJ,
complainant acknowledged being AWOL on one occasion because he went
out of town with a friend to purchase shrimp. The Commission finds no
evidence in the record to show that the action in question was in any
way related to complainant's race, sex, or disability. Accordingly,
it is the decision of the Commission to AFFIRM the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
__________________________________
Carlton M. Hadden, Director
Office of Federal Operations
________08-14-02__________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1It is noted that the agency's November 1995 dismissal of the underlying
complaint for failure to state a claim was reversed by the Commission,
and the case remanded for further processing. Sharp v. USPS, EEOC Appeal
No. 01961619 (November 27, 1996), request for reconsideration denied,
EEOC Request No. 05970307 (July 30, 1998).
2For purposes of this decision, the Commission assumes complainant is
an individual with a disability.