01a01865
11-17-2000
Emily E. Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Emily E. Johnson v. United States Postal Service
01A01865
11-17-00
.
Emily E. Johnson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01865
Agency No. 1J-461-0078-98
Hearing No. 240-99-5071X
DECISION
INTRODUCTION
Complainant filed an appeal with the Equal Employment Opportunity
Commission (the Commission) from the final agency decision (FAD)
concerning her claim that the agency discriminated against her in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in
accordance with 29 C.F.R. � 1614.405.<1>
ISSUES PRESENTED
1) Whether complainant's appeal was filed in a timely manner; and
2) Whether complainant established, by a preponderance of the evidence,
that she was discriminated against because of her race (Black) and color
(black) when on December 23, 1997, she was terminated from her position.
BACKGROUND
The record indicates that the complainant received the final agency
decision on October 19, 1999.<2> By regulation, appeals to the
Commission must be filed within thirty (30) calendar days after a
complainant receives the final agency decision. Appeals are deemed
filed on the date received by the Commission, unless postmarked earlier.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified as 29 C.F.R. �
1614.604(b)). Prior to her appeal being received by the Commission
on December 16, 1999, the record indicates that complainant submitted
an earlier version to the Commission's District office located in the
Washington, D.C. area. This appeal was received by the District office
on November 15, 1999.
The Commission has held that where proper appeal rights have been given,
an appeal is untimely filed where the appeal is mailed to the wrong
office, even if it would have been timely filed if mailed directly to
the Commission. See Henry v. Department of Veterans Affairs, EEOC
Request No. 05901116 (November 30, 1990). In several recent cases,
however, the Commission has allowed exceptions to the Henry rule, where
it was evident that the complainant was earnestly attempting to preserve
his/her appeal rights. See Rodriguez v. Department of the Air Force,
EEOC Request No. 05940933 (June 2, 1995) (confused complainant mailed
appeal within the limitations period to an EEOC District Office); Thompson
v. Department of the Army, EEOC Appeal No. 05940588 (February 24, 1995)
(confused complainant timely filed appeal with agency's EEO Office);
Orr v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,
1994) (appeal filed with agency EEO Office, but agency failed to promptly
forward the appeal to the Commission). Because complainant filed an
appeal with the Commission's District office, prior to the expiration
of the 30-day time limitation period, we find that she was earnestly
attempting to preserve her appeal rights. Therefore, we find her appeal
is timely. We will now address the merits of complainant's appeal.
Complainant was a Distribution Clerk in the agency's Processing and
Distribution Center located in Indianapolis, Indiana. The record
indicates that complainant was terminated because she violated the terms
of a �Last Chance Agreement,� which was for unsatisfactory attendance.
The agreement, dated December 26, 1996, defined unsatisfactory attendance
as �no more than three unscheduled absences during any six month period
and no occasions of AWOL.� An unscheduled absence was defined as any
absence that an employee fails to report and/or document as required.
According to complainant, she was late for scheduled overtime on November
26, 1997; she provided documentation for a December 7, 1997, unscheduled
absence; and, on December 12, 1997, when she was charged AWOL after she
ran out of gas and construction workers had to assist her. Afterward,
complainant stated that she was told by her supervisor, A-1, to go back
to the construction site and obtain documentation from the construction
workers. Complainant maintained that, after returning to the site,
she found that the workers were transient; therefore, she was unable to
locate the individuals who had assisted her. Complainant maintained that
she returned to the site in excess of five times. Complainant felt that
it was not reasonable to terminate her for being twenty minutes late,
which she maintained should have been treated as an unexcused absence.
She also maintained that A-1, her immediate supervisor, and A-2, Acting
Distribution Operations Specialist, promised her that the AWOL charge
would be removed, if she drove a female employee to the hospital on
December 18, 1997. Complainant argued that, C-1 and C-2 (both Caucasian
females), were not treated in the same manner that she was. According to
complainant, C-1 had a Last Chance Agreement, but was not terminated.
She also stated that C-1 and C-2 both were AOT (AWOL from scheduled
overtime) on more than one occasion or did not report at all. Finally,
for the first time, complainant, in her affidavit, also maintained that
her termination was due to a disability (both feet)<3> and in retaliation
for engaging in prior EEO activity<4>.
A-1 (race/Black and color/black) testified that complainant was terminated
because of her failure to comply with the �Last Chance Agreement.� A-1
stated that complainant was aware that documentation was required for
any lateness. He also stated that it was complainant who indicated
that she would obtain documentation from the construction workers.
He noted, however, that said documentation was never provided. A-1 also
denied complainant's contention that she was promised the removal of the
AWOL charge in exchange for taking another employee to the hospital.
A-1 also stated that, to his knowledge, no other employee in his unit
failed to report or was late for overtime. When employees were late,
he stated that they were required to sign a late slip.
A-2, (race/Caucasian and color/white), testified that complainant, in
lieu of termination, could have received either an unscheduled absence
or an AWOL, if it had been her first occasion. He noted, however,
that �this decision is solely made by the supervisor.� A-2 maintained
that �to [his] knowledge no other employee under [his] authority has
had a �Last Chance Agreement,� which they violated.� He also denied
complainant's contention that she was promised the removal of the AWOL
charge in exchange for taking another employee to the hospital.
A-3, the Tour Two, Manager Distribution Operations (race/Black and
color/black), testified that complainant was terminated because
she violated the Agreement and had already gone through progressive
discipline, which included agreeing to enter a last chance status.
With respect to C-1 and C-2, A-3 maintained that she did not know
if either were listed as being AOT or AWOL, but both �lived out� the
duration of their agreements.<5>
Complainant filed her formal complaint in March 1998. Following an
investigation, she was provided with a copy of the investigative file and
notified of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested such a hearing, but on September 27,
1999, the AJ granted the agency's motion for summary judgement. The AJ,
in determining that this matter could be disposed of without a hearing,
found that complainant failed to establish a prima facie case of race or
color discrimination. Additionally, the AJ found that the complainant
failed to establish pretext with respect to the agency's legitimate,
non-discriminatory reasons for removing her. The AJ noted that, on
October 28, 1997, when C-1 incurred an AOT, her �Last Chance Agreement,�
had already expired. The AJ also noted that the evidence presented by
the agency indicated that complainant, in addition to her December 12,
1997 AWOL, had incurred
five absences within a one month period.<6>
The agency issued a final decision on October 7, 1999, which adopted
the AJ's findings and recommendations.<7> After a review of the record
in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final decision because the Administrative
Judge's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
____11-17-00__________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record contains a copy of a certified mail return receipt that shows
that the final agency decision was received at her home on October 19,
1999.
3Complainant provided no other medical information about this matter.
4The record indicates that she engaged in EEO activity in 1991, 1994,
and 1996.
5The record, we note, indicates that C-2 was never issued a �Last Chance
Agreement.� On March 14, 1995, C-1 was issued a Notice of Removal, which
was modified to a �Last Chance Agreement.� She met the requirements of
the agreement and, on March 31, 1997, it was expunged from her records.
6November 4 - 12, 1997, 72 hours LWOP; November 23, 1997, .12 hours
LWOP/Late; November 26, 1997, 1.89 hours AOT; December 7, 1997, .52
hours LWOP/Late; and December 12, 1997, .40 hours AWOL.
7With respect to the bases of disability and reprisal, raised by
complainant in her affidavit, we, like the AJ, will assume that
complainant established a prima facie case of discrimination. For the
reasons stated above, however, she was unable to establish that the
reasons presented by management for her removal were pretextual.