05960762
10-01-1998
La Ray Hunter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
La Ray Hunter v. United States Postal Service
05960762
October 1, 1998
La Ray Hunter, )
Appellant, )
)
v. ) Request No. 05960762
) Appeal No. 01962127
William J. Henderson, ) Agency No. 4F-913-2951-93
Postmaster General, ) Hearing No. 370-95-X2290
United States Postal Service, )
Agency. )
)
DECISION TO RECONSIDER
On August 3, 1996, the appellant, by and through her representative,
timely initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in Hunter v. United States Postal
Service, EEOC Appeal No. 01962127 (June 27, 1996).<1> EEOC regulations
provide that the Commission may, in its discretion, reconsider any
previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence that tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the appellant's request is denied. The Commission on
its own motion, however, reconsider's the previous decision.
ISSUES PRESENTED
Whether: (1) the previous decision properly dismissed the appellant's
appeal on the grounds that it was untimely filed, and (2) whether the
agency properly found that the appellant was not discriminated against
on the basis of sex (female) when she was issued a notice of removal in
August 1993.
BACKGROUND
The appellant was removed from her position of part-time flexible clerk
with the Ridgecreast, California Post Office for irregular attendance and
failure to maintain a regular work schedule. She filed an EEO complaint
alleging issue 2. Following an investigation, she requested a hearing
before an Equal Employment Opportunity Commission Administrative Judge
(AJ). Pursuant to 29 C.F.R. �1614.109(e)(1), the agency filed a motion
for a recommended decision by the AJ without a hearing. It argued that
there were no material facts in genuine dispute. After receiving the
appellant's response, the AJ granted the motion and issued a recommended
decision finding no discrimination, which the agency adopted in its
final decision.
The appellant received the final agency decision on July 17, 1995.
Her appeal was dated August 9, 1995, but was filed by fax on January
29, 1996. With the appeal, the appellant submitted a letter by a
named, but otherwise unidentified individual. It was dated August 15,
1995 and indicated that a letter by the appellant's representative
addressed to the Commission was placed in the "mail stream" that date
by the unidentified individual. It provided a certified mail number
for the letter that was mailed to the Commission, but the appellant did
not provide a receipt for certified mail or a domestic return receipt.
The previous decision found that the above evidence was insufficient to
show that the appeal was timely filed.
On request for reconsideration, the appellant submits a sworn statement by
the individual who wrote the letter concerning the mailing. He identifies
himself as an express mail clerk, and writes that the letter was accurate.
Further, the appellant submits a receipt for certified mail stamped
"Receipted August 15, 1995," with the same certified mail receipt number
that was referenced in the letter regarding the mailing. The appellant
explained that she asked the express mail clerk to mail the appeal
to the Commission, and write a letter stating he did so, to establish
independent proof of the mailing. We now turn to other issues in the
appellant's case.
The appellant's witness request list to the AJ included comparative
employees, but no explanation of their expected testimony. The
investigative file, however, contains a note by an unidentified person
stating that a male comparative employee (identified in the investigative
file as Comparison E) would consent to providing a statement that he
was not reprimanded for being excessively tardy, and his tardiness was
not recorded on request for notification of absence forms.
In response to the agency's motion to the AJ for a recommended decision
without a hearing, the appellant argued that considering the amount of
prior progressive discipline she had, her treatment was harsher than
male comparative employees. She further argued that testimony would
establish that the agency had not taken disciplinary actions against other
unidentified male employees whose daily attendance was as comparatively
bad, or worse than hers during the same period of time she received her
progressive disciplinary actions, up to and including her removal.
The AJ granted the agency's motion for a recommended decision without
a hearing. The AJ reasoned that the comparative male employees were
not as far along on the progressive disciplinary chain as the appellant,
and hence, the fact that they were not removed for irregular attendance
and failure to maintain a regular work schedule did not tend to prove
discrimination.
On appeal, the appellant argues that while she only got one letter of
warning for irregular attendance and failure to maintain a regular
work schedule, male Comparisons B and C (identified as such in the
investigative file) each got two letters of warning each for this
infraction. She argues that if she got a second letter of warning,
she would have been on the same level on the progressive disciplinary
chain as Comparisons B and C.
The notice of removal cited two letters of warning against the appellant.
One letter was for irregular attendance and failure to maintain a regular
work schedule, and the second was for failure to follow instructions
and provide acceptable documentation. The appellant argues that under
the collective bargaining agreement, the second letter should not
be utilized to form the basis of the progressive disciplinary chain
because it is a different type of infraction. However, the appellant
grieved her removal, and an arbitrator did not rule that the progressive
discipline violated the agreement. Further, the second warning concerned
a failure to follow instructions to provide medical documentation to
cover an absence, resulting in a charge of absence without leave (AWOL).
This is an attendance related matter.
On appeal, the appellant refers to a request she made to the agency,
with respect to Comparisons B, C and E, for clear copies of absence
analysis documentation for fiscal years 1992 and 1993, disciplinary
actions from fiscal year 1991 through October 1993, notification of
request for absence forms from January 1993 through October 1993, and
time cards. Previously, the AJ issued an order on April 28, 1995 noting
that the appellant was going to make a written request for better copies
of unspecified documents, and the agency agreed it would try to comply
with such a request.
The record contains photocopies of absence analyses for Comparisons B, C,
and E for the end of calendar year 1992 and calendar year 1993. For the
most part, they are legible. The record does not contain absence analyses
for prior times, nor request for notification of absence forms for the
comparisons. It contains disciplinary actions against the comparisons,
and the appellant has not claimed that these records are incomplete.
On appeal, the appellant states that the agency never complied with her
request for the above documentation.
The postmaster of the facility where the appellant worked started working
as a postmaster there in early February, 1993. He stated that when he
started, he asked supervisors to review all attendance records, and
discipline was taken where warranted.
The first level supervisor of the appellant stated that she was the daily
supervisor of the appellant and Comparisons B and C from August 1992
through August 1993. They were clerks. She gave Comparison B a discussion
in March 1993 for unacceptable tardiness and sick leave, and a letter
of warning in April 1993 for irregular attendance. This supervisor gave
Comparison C a discussion in March 1993 for tardiness and sick leave, and
a letter of warning in August 1993 for irregular attendance and failure to
maintain a regular work schedule. The appellant was issued a notice of
suspension in April 1993 by the above supervisor for AWOL and irregular
attendance and failure to maintain a regular work schedule. The record
does not reflect that Comparison E, a letter carrier, worked for the
above supervisor, and the appellant does not claim that he did so.
ANALYSIS AND FINDINGS
In order to prompt the Commission to reconsider its previous decision,
the appellant must present evidence or argument that satisfies one of
the criteria of 29 C.F.R. �1614.407. After considering the appellant's
request, we find that she has failed to do so. However, the Commission
on it own motion reconsider's the previous decision.
By regulation, appeals to the Commission must be filed within 30 days
of receipt of the agency's final decision. 29 C.F.R. �1614.402(a).
On request, the appellant submits persuasive evidence that her appeal was
filed within this 30 day time limit. Specifically, she submits a sworn
statement by the individual who mailed the appellant's appeal which
provides his identity and confirms that he timely filed the appeal.
She also submits a dated receipt for certified mail for the appeal.
While the evidence the appellant submits is not new, and hence does
not meet the criteria for reconsideration, we will consider it on our
own motion since the appellant was not represented by an attorney and
likely did not understand the type of evidence she needed to submit to
prove the timeliness of her appeal.
In order for employees to be considered similarly situated, all
relevant aspects of the employees' work situation must be identical or
nearly identical. This requires that they engaged in the same conduct,
reported to the same supervisor, performed the same job function, and
had equivalent disciplinary records. O'Neal v. United States Postal
Service, EEOC Request No. 05910490 (July 23, 1991), Lewis v. United
States Postal Service, EEOC Request No. 05940307 (November 10, 1994).
We agree with the finding of the AJ that the appellant did not present
evidence that tended to prove sex discrimination. The AJ correctly
noted that the male comparisons were not as far along in the chain of
discipline as the appellant. We add that the appellant's supervisor
gave discussions to and disciplined Comparisons B and C for attendance
problems around the same time she disciplined the appellant in 1993
for attendance matters. This tends to show equal treatment. Further,
Comparison E was a letter carrier, and hence, performed a different job
function than the appellant, and the record does not show that Comparison
E worked for the appellant's supervisor. The Commission declines to
disturb the decision of the AJ to find no discrimination.
On appeal, the appellant argued that she was not provided documentation
she requested from the agency. The order by the AJ did not indicate
that the agency promised to provide new documents to the appellant,
only that it promised to try to provide better copies of documents.
The documentation in the record, for the most part, is legible.
The appellant does not contend that after not receiving requested
documentation, she contacted the agency to get an explanation, and there
is no evidence in the record of improper conduct on the part of the
agency with regard to attempting to comply with the appellant's request.
Given these circumstances, the Commission will not remand this case
to the agency for the provision of additional documentation. The final
decision of the agency is affirmed.
CONCLUSION
The appellant's request fails to meet any of the criteria of 29
C.F.R. �1614.407(c). The Commission on its own motion, however, grants
the appellant's request, and finds that her appeal was timely filed.
The agency's final decision which determined that appellant was not
discriminated against when she was removed is affirmed.
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).<2>
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:
Oct. 1, 1998
Date Frances M. Hart
Executive Officer
1The decision was received by the appellant's representative, who is
not an attorney, on July 9, 1996. It was received by the appellant on
August 5, 1996.
2Although this decision is in response to a request for reconsideration,
this is the first decision where the Commission addressed whether the
agency properly found that the appellant was not discriminated against
when she was removed. For this reason, with the exception of whether
the appeal was timely filed, either party may request reconsideration
of this Commission decision.