01981492
10-30-1998
Barbara Cook, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.
Barbara Cook v. United States Postal Service
01981492
October 30, 1998
Barbara Cook, )
Appellant, )
) Appeal No. 01981492
v. ) Agency No. 1C-451-1118-96
) Hearing No. 220-97-5022X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black) and sex (female),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Appellant alleges she was discriminated
against when she was issued a fourteen day suspension for improper
conduct on March 11, 1996. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a PS-05 Mail Handler at the agency's Cincinnati, Ohio Processing and
Distribution Center. After filing a false police report following an
altercation with her boyfriend in the agency's parking lot, appellant was
arrested by the Cincinnati police department. Appellant's supervisor
recommended a fourteen day suspension for improper conduct, which was
subsequently approved. Appellant contended that two Caucasian Mail
Handlers, one male and one female, were treated more favorably by
the agency. The agency responded, noting that both comparators cited
by appellant were disciplined for committing different infractions,
i.e., failure to satisfactorily maintain a regular work schedule,
and using another employees time card, than that for which appellant
was disciplined.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on May 15, 1996.
At the conclusion of the investigation, appellant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Pursuant to 29 C.F.R. �1614.109(e), the AJ issued a
Recommended Decision (RD) without a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of race or sex discrimination because she failed to demonstrate that
similarly situated employees not in her protected classes were treated
differently under similar circumstances. In reaching this conclusion,
the AJ noted that neither of the comparators cited by appellant were
disciplined for the infraction for which appellant was disciplined.
Therefore, the AJ concluded that appellant failed to establish an
inference of discrimination. The agency's FAD adopted the AJ's RD.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ's conclusion that
the comparators were not similarly situated to appellant because they
were disciplined for committing different infractions than appellant.
We therefore discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record.
We therefore AFFIRM the FAD.
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:
Oct 30, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations