Alice Hewitt, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 30, 1999
01976731 (E.E.O.C. Sep. 30, 1999)

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.