01981348
10-30-1998
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Felicia Jackson v. United States Postal Service
01981348
October 30, 1998
Felicia Jackson,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Areas),
Agency.
Appeal No. 01981348
Agency No. 4F-900-1071-95
Hearing No. 340-96-3645X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning her allegation that she was discriminated against on the
bases of race (African American), color (black), and sex (female),
when: (1) on December 15, 1994, she was issued a 7-day suspension; (2)
on December 19, 1994, she was placed on administrative leave; (3) on
December 24, 1994, she was placed on non-duty status; and (4) on January
24, 1995, she was issued a Notice of Removal, in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960.001. For the following reasons, the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was
employed as a Distribution Window Clerk, PS-5, at the Wilcox Post
Office in Los Angeles, California. Believing that she was the victim of
discrimination, appellant sought EEO counseling and, thereafter, filed a
formal EEO complaint. The agency accepted the complaint for investigation
and complied with all of our procedural and regulatory prerequisites.
Subsequently, appellant requested a hearing before an EEOC Administrative
Judge (AJ), which was held on October 25, 1996. On August 25, 1997,
the AJ issued a Recommended Decision (RD) finding no discrimination.
In her RD, the AJ concluded that appellant failed to establish a prima
facie case of discrimination on any basis. Specifically, the AJ reasoned
that appellant failed to present a similarly situated comparator that was
treated more favorably. The AJ further concluded that, assuming appellant
had established a prima facie case, she failed to show that the agency's
actions were pretextual. Thereafter, the agency adopted the RD and issued
a FAD, dated November 6, 1997, finding no discrimination. It is from this
agency decision that appellant now appeals. On appeal, appellant asserts,
among other things, that the pool of similarly situated comparators is
much broader than that which was examined by the AJ. Appellant asserts
that the pool should be expanded beyond those individuals that share
the same supervisor to all individuals under the jurisdiction of the
General Manager/Postmaster of the Los Angeles postal district.
The investigative record reveals that during the 8-month period prior
to the first alleged discriminatory event, appellant was late 116 days,
absent without leave (AWOL) 10 days, took 12 days annual leave and
4 days sick leave. Additionally, appellant was given discussions or
issued warnings on six separate occasions concerning her tardiness.
Furthermore, she was issued a letter of warning in November 1994 for
unsatisfactory attendance and excessive absenteeism. On December 15,
1994, appellant was issued a 7-day suspension for absenteeism (later
reduced to a letter of warning). On that same day, appellant became
involved in a physical altercation with a customer. The evidence
of record indicates that the altercation was probably started by the
customer, who made derogatory remarks concerning appellant's race and
gender when she could not find his package. In response, appellant left
her duty station (behind the counter), ostensibly, to retrieve a claim
slip that had been dropped in the lobby where the customer was standing.
At that point the altercation occurred. Thereafter, appellant was placed
on administrative leave, followed by non-duty status and, ultimately,
issued a Notice of Removal for "Being Involved in a Physical Altercation
With a Postal Customer" while on duty and on agency premises.
Appellant testified that she was similarly situated to a comparative
employee (C1, Caucasian, white, female) who was assaulted by a customer
while on her carrier route. In that instance the agency did not issue
any discipline to C1 because, instead of responding to the assault,
she returned to the postal facility and reported the problem to her
supervisor.
After careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's RD sets forth the relevant facts, and properly analyzes the
appropriate regulations, policies and laws. With respect appellant's
contentions on appeal, the Commission has consistently held that in
order for comparative employees to be considered similarly situated,
all relevant aspects of appellant's situation must be nearly identical
to those of the comparative employee. O'Neil v. United States Postal
Service, EEOC Request No. 05910490 (July 23, 1991). The Commission
discerns no basis to disturb the AJ's finding. Accordingly, the FAD 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. 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:
Oct 30, 1998
_____________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations