01971847
01-15-1999
Brenda F. Dantzler, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.
Brenda F. Dantzler v. United States Postal Service
01971847
January 15, 1999
Brenda F. Dantzler, )
Appellant, )
) Appeal No. 01971847
v. ) Agency No. 4C-440-1304-95
) Hearing No. 220-96-5100X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic 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 sex (female), and reprisal
(prior EEO activity), 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 or around April 13, 1995, she was issued a
fourteen day suspension for failure to maintain a regular work schedule.
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 during the relevant time, appellant was
employed as a PS-05 Letter Carrier at the agency's Euclid Branch
Facility, Cleveland, Ohio. After receiving notice of, and serving,
the above-referenced suspension, and believing she was a victim of
discrimination, appellant sought EEO counseling and, subsequently,
filed a formal complaint on August 11, 1995. At the conclusion of the
investigation, appellant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a Recommended Decision (RD) finding
no discrimination.
The AJ concluded that appellant established a prima facie case of
retaliation, and then assumed, for purposes of analysis, that she had
also established a prima facie case of sex discrimination. The AJ then
concluded that the agency articulated legitimate, nondiscriminatory
reasons for issuing the suspension, namely, that appellant's supervisor
testified that appellant's attendance was the worst in her unit, that she
was late almost every day, that she rejected other attempts to counsel
her, and that she informed her that she was intentionally coming in
late as a protest to a change in her work schedule. The AJ found that
appellant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination or
retaliation. In reaching this conclusion, the AJ noted that the agency
presented evidence that other male employees had received fourteen day
suspensions for, among other things, failure to maintain a regular work
schedule. The agency's FAD adopted the AJ's RD. On appeal, appellant
contends that the AJ erred when he failed to consider testimony by her
supervisor, who stated that tardiness was not a big issue, and that
another male employee who had a similarly poor attendance record was
not disciplined. The agency 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, and note
that appellant failed to present evidence that more likely than not,
the decision to suspend her for fourteen days was in retaliation for
appellant's prior EEO activity or was motivated by discriminatory
animus toward appellant's sex.<1> We therefore 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:
Jan 15, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that the facts herein are distinguishable from
Dantzler v. United States Postal Service, EEOC Appeal No. 01973907
(to be issued simultaneous with this decision); where the AJ found that
the supervisor was more likely than not motivated by discriminatory and
retaliatory animus where the facts demonstrated that comparable male
employees were not removed for similar infractions, as appellant had
been. However, in the instant appeal, this AJ had before him a record
which demonstrated that other male employees had received fourteen day
suspensions for similar attendance infractions.