01973741
05-13-1999
Rhonda White, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Rhonda White, )
Appellant, )
) Appeal No. 01973741
v. ) Agency No. 1-J-494-1066-95
) Hearing No. 230-96-4099X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), national origin
(African-American), color (black), and sex (female), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Appellant alleges she was discriminated against when on April 7,
1995, she was terminated for poor attendance. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant, a transitional employee at the agency's
Grand Rapids, Michigan, Processing and Distribution Center, filed a formal
EEO complaint with the agency on or around June 20, 1995, alleging that
the agency had discriminated against her as referenced above. At the
conclusion of the investigation, appellant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)
finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of discrimination because she failed to demonstrate that similarly
situated employees not in her protected classes were treated differently
under similar circumstances. In reaching this conclusion, the AJ noted
the existence of other employees either Caucasian, white or male, who
were similarly terminated for poor attendance. Despite appellant's
allegations to the contrary, the AJ found credible the testimony of the
Supervisor of Distribution Operations (SDO) responsible for monitoring
the attendance for transitional employees, when he testified that others
were terminated for poor attendance, and that he did not overlook
unscheduled leave of Caucasian comparators. SDO indicated that appellant
had recently been issued two prior letters of warning for attendance,
and that he could have terminated her earlier because she had exceeded
the number of permitted absences prior to her actual termination.
Finally, the AJ noted that appellant presented insufficient evidence to
demonstrate that the agency implemented the Family and Medical Leave Act
differently because of appellant's race, color, sex and national origin.
The agency's FAD adopted the AJ's RD. On appeal, appellant restates
arguments previously made at the hearing, and alleges that similarly
situated employees were retained by the agency despite poor attendance.
The agency responds by restating the position it took in its FAD, and
requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ's conclusion that
appellant failed to present evidence of similarly situated employees
who were retained notwithstanding poor attendance. The Commission notes
that the alleged comparator presented on appeal had her termination for
attendance rescinded do to a management error in the implementation of the
policy, and due to questions about whether some of the alleged days were
in fact unscheduled absences. While appellant presented no evidence as to
whether this comparator was a similarly situated transitional employee,
we note that even assuming, arguendo, appellant established a prima
facie case of discrimination, the AJ found the SDO credible when he
testified that appellant's attendance was poor, and that her termination
was justified pursuant to the attendance policy. Appellant failed to
present evidence that more likely than not, discriminatory animus under
any of appellant's alleged bases motivated her termination. We discern
no basis to disturb the AJ's findings of no discrimination which were
based on a detailed assessment of the record and the credibility of the
witnesses. See Gathers v. United States Postal Service, EEOC Request
No. 05890894 (November 9, 1989); Wrenn v. Gould, 808 F.2d 493, 499
(6th Cir. 1987); Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
May 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations