01a51709
09-26-2005
Nicole Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nicole Smith v. United States Postal Service
01A51709
September 26, 2005
.
Nicole Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51709
Agency No. 4A-110-0045-04
DECISION
Complainant appeals to the Commission from the agency's decision
dated October 12, 2004, finding no discrimination. In her complaint,
complainant, a City Letter Carrier at the agency's Brooklyn Post Office,
alleged discrimination based on race/color (Black), sex (female), and
disability (not specified) when on January 2, 2004, she was issued a
Notice of Seven Day, No-Time Off Suspension; on January 20, 2004, she
was issued a Notice of Seven Day, No-Time Off Suspension; on January 26,
2004, she was issued a Notice of Fourteen Day, No-Time Off Suspension;
and on January 28, 2004, she was issued a Notice of Removal. The agency,
in its decision, concluded that it asserted legitimate, nondiscriminatory
reasons for its actions, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination,
finds that the agency has articulated legitimate, nondiscriminatory
reasons for the alleged suspensions and removal notice. Specifically,
complainant's supervisor stated that he issued complainant the January 2,
2004 suspension because she failed to deliver the late relays to carriers
on the street on December 23, 2002. The record indicates that the alleged
matter was, subsequently, reduced to a four day, no-time off suspension
through the grievance procedure.
With regard to the January 20, 2004 suspension, the supervisor
indicated that complainant was charged with �failure to be regular in
attendance/tardiness/absenteeism.� The supervisor also indicates that
complainant had a number of unscheduled absences, i.e., 7 instances of
tardiness, unscheduled absences and/or AWOL between the period of October
8, 2003 and January 10, 2004. The record indicates that the alleged
matter was grieved and was reduced to a six day, no time off suspension.
With regard to the January 26, 2004 suspension, the supervisor stated
that an employee reported and complainant admitted that complainant
had mis-delivered a piece of Express Mail for a corporate account.
This matter was subsequently reduced to a three day, no time off
suspension, through the grievance procedure.
With regard to the January 28, 2004 removal notice, the supervisor stated
that complainant was charged with �failure to properly perform [her]
duties: mis-delivery of mail and non-delivery of mail/failure to follow
a direct order.� Specifically, the supervisor indicated that he received
a call from a carrier on the street who informed him that complainant had
delivered relays in the wrong box and he was having trouble locating the
mail for delivery. The supervisor also indicated that complainant was
also charged with bringing back undelivered priority and parcel pieces
on January 22, 2004. In this regard, complainant admitted that at the
relevant time period, she did not have time to deliver the mail and
brought it back. The alleged removal was reduced to a fourteen day,
no time off suspension through the grievance procedure.
After a review of the record, the Commission finds that complainant
failed to show that the agency's reasons were pretext for discrimination.
Based on the foregoing, the Commission finds that complainant failed to
show, by a preponderance of the evidence, that she was discriminated
against on the bases of race/color, sex or disability. Accordingly,
the agency's decision finding no discrimination is AFFIRMED.<1>
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
September 26, 2005
__________________
Date
1The Commission does not address in this decision whether complainant
is a qualified individual with a disability.