01a62014
10-26-2006
Bridget P. Morales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bridget P. Morales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A62014
Agency No. 1F-946-0029-05
DECISION
Complainant appeals to the Commission from the agency's decision
dated January 11, 2006, finding no discrimination. In her complaint,
complainant, a Casual Clerk at the agency's Oakland facility, CA, alleged
discrimination based on disability (high blood pressure, depression, and
learning) when on February 11, 2005, she received a Notice of Termination
charging her with being Absent Without Official Leave (AWOL).1
After completion of the investigation of the complaint, complainant
initially requested a hearing but later effectively withdrew the
request.2 On appeal, complainant does not contest this withdrawal.
The agency then issued its decision concluding that it asserted
legitimate, nondiscriminatory reasons for the alleged termination,
which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant established a prima facie case of discrimination, finds
that the agency articulated legitimate, nondiscriminatory reasons for
the termination. Complainant's supervisor stated that complainant was
terminated solely due to her failure to notify/contact her employer or
supervisor about her absence in a timely manner either through the call-in
toll free number, mail, in person, or by third party. The supervisor
indicated that the termination was based on complainant's missing from
work for almost two weeks from January 29, 2005, to February 9, 2005.
Complainant claimed that her coworker was AWOL in January 2005, but she
was not terminated. However, the supervisor stated that that coworker
was AWOL for only one day on January 15, 2005, and not eight days.
The supervisor also indicated that he gave that coworker a copy of the
call-in number and a firm warning that any further AWOL would result
in disciplinary action up to and including removal from the agency.
On appeal, complainant contends that she called a certain phone number
about her absence. However, she does not identify that operator; nor
does she provide any evidence that she made that purported call about her
absences at issue. Complainant, nevertheless, admits that she knew about
the call-in toll free number but she decided not to call that number.
After a review of the record, the Commission finds that the agency
articulated legitimate, nondiscriminatory reasons for the termination.
The Commission also finds that complainant failed to show that the
agency's reasons were pretext for discrimination. After a review of
the record, the Commission finds that complainant failed to show,
by a preponderance of the evidence, she was discriminated against.
The Commission does not address in this decision whether complainant
is a qualified individual with a disability. Furthermore, we note
that complainant has not claimed that she was denied a reasonable
accommodation.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 tends 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 26, 2006
__________________
Date
1 The record indicates that on June 2, 2005, the agency previously
dismissed four other claims in the instant complaint. Complainant does
not dispute this dismissal on appeal.
2 The record indicates that on December 8, 2005, in EEOC Hearing
No. 370-2006-00021X, an EEOC Administrative Judge (AJ) issued his order
returning complainant's complaint to the agency for final decision based
on her withdrawal of her request for a hearing.
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01A62014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036