0120082184
09-04-2009
Belle A. Jenkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Belle A. Jenkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120082184
Agency No. 1H-301-0055-07
DECISION
On April 4, 2008, complainant filed an appeal from the agency's April 1,
2008 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly found that complainant
had not been discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Flat Sorting Machine Operator at the agency's Atlanta Processing and
Distribution Center facility in Atlanta, Georgia. On October 1, 2007,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of sex (female) and in reprisal for prior protected
EEO activity arising under Title VII when:
1. since May 25, 2007 and continuing, she was subjected to
harassment/hostile work environment pertaining to work hours, leave usage,
and higher level assignments; and
2. on July 5, 2007, she was issued disciplinary action, in the form of
a Letter of Warning dated June 27, 2007.
Complainant's complaint contained other incidents of harassment
which occurred prior to the beginning of the 45-day period preceding
complainant's contact with an EEO Counselor, which the agency dismissed
as untimely in a letter titled Acceptance for Investigation, dated
October 17, 2007. Additionally, complainant also claimed that she had
been discriminated against based on her age, but as complainant was not
yet 40 years of age, and therefore not covered by the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
at the time of her complaint, the agency properly did not investigate
(or analyze) her complaint on this basis.
At the conclusion of the investigation,1 complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). When complainant did
not request either a hearing or a final agency decision within the time
frame provided in 29 C.F.R. � 1614.108(f), the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b).
The final agency decision (FAD) concluded that complainant failed to
prove that she was subjected to discrimination as alleged. In its
FAD, the agency concluded that complainant had not shown that she had
established prima facie cases of discrimination based on her sex or
reprisal. Complainant claimed that she had been denied work hours and
higher level assignments that other employees received, that she had
been harassed in terms of her leave usage, and that she had received a
Letter of Warning for Failure to be Regular in Attendance. The agency
put forth legitimate, nondiscriminatory reasons for its actions, i.e.,
complainant's excessive absences. The record indicates that, within
a 5 month period of time, complainant had 24 absences and 10 incidents
of tardiness. The agency's decision concluded that she had not shown
the agency's reasons to be pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. The agency
requested that we affirm its FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
After a thorough review of the record, as well as the argument
submitted by the agency in opposition to the appeal, and in the
absence of any argument from complainant in support of her appeal,
we find that the agency's conclusion that complainant has not shown
that she was discriminated against based on her sex or in reprisal for
previous EEO activity was correct, and we AFFIRM the agency's finding
of no discrimination. There is simply no persuasive evidence that
establishes that complainant's sex or prior EEO activity played a role
here. In so finding, we note that we do not have the benefit of an AJ's
findings after a hearing, and therefore, we can only evaluate the facts
based on the weight of the evidence presented to us.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
______9-04-09____________
Date
1 Complainant did not return a completed affidavit to the EEO Investigator
despite requests of her and her attorney representative to do so.
Therefore, the agency proceeded with its analysis of the complaint based
on complainant's statements in her formal complaint and in her request
for counseling.
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0120082184
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082184