Ophelia J. Austrie, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionMar 30, 2006
01a60659 (E.E.O.C. Mar. 30, 2006)

01a60659

03-30-2006

Ophelia J. Austrie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Ophelia J. Austrie v. United States Postal Service

01A60659

March 30, 2006

.

Ophelia J. Austrie,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01A60659

Agency No. 1H-340-0001-05

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

affirms the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Data Conversion Operator at the agency's Remote Encoding Center

in Tampa, Florida. Complainant sought EEO counseling and subsequently

filed a formal complaint on November 18, 2004, alleging that she was

discriminated against on the bases of her sex and in reprisal for prior

EEO activity when on September 29, 2004, management issued her a Notice

of Removal.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

initially requested a hearing, but subsequently rescinded that request

and the agency issued a final decision.

In its FAD, the agency concluded that assuming, arguendo, complainant

established a prima facie case of sex and reprisal discrimination,

it nonetheless articulated legitimate, nondiscriminatory reasons for

its action. Specifically, the FAD found that complainant was issued

a Notice of Removal because of continued attendance problems. The FAD

concluded that complainant failed to show that this articulated reason

was a pretext for unlawful discrimination. Complainant makes no arguments

on appeal, and the agency requests that we affirm its FAD.

As a preliminary matter, we note that we review the decision on an appeal

from a FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

She must generally establish a prima facie case by demonstrating that

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Here, we find that the agency articulated a legitimate, nondiscriminatory

reason for its actions which complainant failed to show was a pretext

for sex or reprisal discrimination. The record reflects that the agency

issued complainant a Notice of Removal, dated September 29, 2004, for

continued unsatisfactory attendance - tardiness - absent without leave

(AWOL). The record further reflects that this notice was the final

step in progressive discipline after complainant was issued a Letter of

Warning, and Notices for both a seven-day and a fourteen-day suspension,

as a result of her continuing poor attendance. Additionally, the record

shows that following the fourteen-day suspension, complainant accrued an

additional six instances of unscheduled absences and that complainant

was aware that such continued absences could result in termination.

We find that complainant has not presented any evidence to show that

the agency's articulated reasons for issuing her the Notice of Removal

were pretextual. Accordingly, we affirm the agency's final order finding

no discrimination.

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

March 30, 2006

__________________

Date