01976731
09-30-1999
Alice Hewitt, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alice Hewitt, )
Appellant, )
)
v. ) Appeal No. 01976731
) Agency No. 4G-770-1521-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On September 8, 1997, Alice Hewitt (hereinafter referred to as appellant)
filed a timely appeal from the August 15, 1997, final decision of the
United States Postal Service (hereinafter referred to as the agency)
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 the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is timely filed
(see 29 C.F.R. �1614.402(a)) and is accepted in accordance with EEOC
Order No. 960, as amended. For the reasons that follow, the agency's
decision is affirmed.
The issue presented in this appeal is whether the appellant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of sex and age (DOB 6-8-56) when she was removed in
August 1996.
Appellant filed a formal complaint of discrimination on August 27, 1996.
Following an investigation, she was advised of her right to request a
hearing before an EEOC Administrative Judge or an immediate final agency
decision (FAD). She did not respond to the notice as directed therein,<1>
and the agency issued a FAD, finding no discrimination.<2>
Appellant began her employment with the agency in September 1995 as
a Transitional Employee, City Carrier. On June 18, 1996, when she
returned from her carrier duties, a supervisor (S1) instructed her to
collect mail on another carrier's route, thus extending her work shift
by approximately one hour. She stated that she was sick and wanted to
go home. The supervisor (S1) directed her to complete a leave form before
she left and provide medical documentation substantiating her illness.
She failed to complete a leave slip and did not provide any documentation.
She was charged AWOL (absence without leave) for one hour. On July
12, 1996, she was issued a notice proposing her removal for being AWOL
and failure to follow instructions. S1 stated that he and the station
manager had experienced similar problems with appellant and had discussed
her failure to follow directions with her previously.
Appellant contended that she was not AWOL, since she left work at the
end of her usual shift. She admitted that she did not sign a leave
form or mark the type of leave before she left or provide documentation
upon her return. She stated, however, that she showed S1 a prescription
medication that she had been issued previously. In addition, appellant
identified other employees (older females) who were treated differently.
The record shows that the two comparatives did not engage in similar
actions, in that, one of the comparatives had an accident, and the other
had mishandled an accountable item.
Generally, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979). Following this established order of analysis in the
matter before us, we may examine the agency's explanation in response
to appellant's assertion of a prima facie case. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Here,
S1 stated that appellant was properly removed for being AWOL and failure
to follow directions. This explanation is supported by the documents
in the record before us, in that, she was charged AWOL when she did
not complete a leave form and failed to provide medical documentation
as directed. We find therefore that the agency articulated a legitimate,
nondiscriminatory reason for its action.
Turning to the third step of the McDonnell Douglas analysis, appellant
must demonstrate by a preponderance of the evidence that the agency's
actions were motivated by discrimination, that is, its articulated reason
was a sham or pretext for discrimination. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993). Under the ADEA, the appellant must show
that her age was a determining factor in the agency's decision, that
is, considerations of age made a difference in the agency's action.
Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a
role in the process and a determinative influence on the outcome").
Although appellant argues that she complied with S1's instructions, the
record shows otherwise. She has not presented any evidence in support
of her contentions nor shown that she was singled out on the basis of
her sex or that her age was a factor in the removal action. Neither the
record herein nor appellant has demonstrated that the agency's reason for
its action was pretextual, that is, based on a prohibited factor such
as sex or age or was grounded in sex or age animus. We find therefore
that the agency did not discriminate against appellant.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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. �l6l4.604(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:
09-30-99
DATE Carlton Hadden, Acting Director
1In her appeal, appellant states that she called the investigator
to request a hearing and that the investigator instructed her
to wait for notification of a date for the hearing. There is
nothing in the record to substantiate this assertion.
2The record contains an arbitration award dated May 8, 1997, denying
appellant's grievance and upholding the removal action.