01971477
03-22-1999
Connie D. Lanier, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (All./Mid-Atl. Region), Agency.
Connie D. Lanier, ) Appeal No. 01971477
Appellant, ) Agency No. 4C-442-1120-95
v. ) Hearing No. 220-95-5421X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(All./Mid-Atl. Region), )
Agency. )
DECISION
The Commission accepts appellant's timely 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, as amended, 42 U.S.C. �2000e et seq.; and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
See EEOC Order No. 960.001. In her complaint, appellant alleged that
she was discriminated against based on her sex, race (Black), physical
disability (knee injury) and reprisal for prior EEO activity when she
was terminated by the agency. For the reasons set forth below, the
Commission AFFIRMS the FAD.
In 1984, appellant injured her knee in an on-the-job accident.
She underwent reconstructive knee surgery in April 1987 and, in
November 1988, accepted a modified Distribution Clerk position under
a rehabilitation program jointly established by the agency and the
Office of Workers' Compensation Programs. On March 25, 1995, appellant
was issued a Notice of Removal on the basis that, from February 6,
through February 27, 1995, she was observed to be away from the agency's
premises, while on-the-clock, on nine occasions for approximately 30
minutes each. The Notice of Removal observed that, when questioned,
appellant acknowledged that she had been leaving the premises to take
her daughter to work since January 1995. Her removal was based on the
charges that she had falsified time records and been absent without leave.
Appellant timely sought EEO counseling and filed her instant EEO
complaint, which was accepted and investigated by the agency. Thereafter,
appellant timely requested a hearing before an EEOC Administrative
Judge ("AJ"). After a hearing, the AJ issued a recommended decision
("RD") finding no discrimination. The agency adopted the RD in its FAD.
On appeal, appellant observes that she was in the rehabilitation program
and primarily argues that the discipline was too harsh and that the agency
did not agree to mitigate the discipline during the grievance procedures.
Appellant complains that the AJ hindered her presentation of her case
due to a delay in holding the hearing because of the AJ's absence on
sick leave and disapproval of certain of appellant's proposed witnesses
and exhibits. Appellant states that she had been leaving the agency's
premises to take her daughter to work since July 1994.
In the RD, the AJ found that appellant was an individual with a disability
as defined by the Commission's Regulations and that she had established
a prima facie case of disparate treatment discrimination on the bases of
sex, race, disability and reprisal in that she alleged that similarly
situated persons outside her protected classes had been treated more
favorably than she. However, the AJ found that appellant failed to
establish that the legitimate nondiscriminatory reasons articulated by
the agency for its actions were a pretext for discrimination. The AJ
was not persuaded that the agency's failure to agree to mitigate the
discipline during the grievance procedure constituted discrimination.
In addition, the AJ noted that although appellant claimed at the hearing
that she had left a request for leave each day on her supervisor's chair,
all of her supervisors denied ever seeing even one such request and none
of her payroll records reflected such leave. Accordingly, the AJ found
no discrimination.
After a thorough review of the record, the Commission finds that the RD
adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission is not persuaded by
appellant's contention that the presentation of her case was hindered by
the AJ's use of sick leave, or that the AJ abused his discretion in his
rulings on appellant's requests for witnesses and exhibits. Accordingly,
the Commission discerns no basis to disturb the AJ's finding that
appellant failed to establish discrimination. Therefore, it is the
decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
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).
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:
March 22, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations