Cheryl A. Kennedy, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01970622 (E.E.O.C. Sep. 9, 1999)

01970622

09-09-1999

Cheryl A. Kennedy, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.


Cheryl A. Kennedy, )

Appellant, )

) Appeal No. 01970622

v. ) Agency No. 4-F-920-1034-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Pacific/Western Region), )

Agency. )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on

the bases of sex (female) and age (date of birth February 2, 1949),

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 (ADEA), as amended, 29 U.S.C. � 621 et seq. Appellant alleges

that she was discriminated against when, on October 25, 1995, she was

issued a Letter of Warning for �Failure to be Regular in Attendance.�

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the reasons set forth below, the agency's decision is AFFIRMED.

BACKGROUND

The record reveals that during the relevant time period, appellant was

employed as a Distribution Clerk at the agency's Palm Desert (California)

Post Office. On July 24, August 11, October 10 and October 11, 1995,

appellant did not report to work as scheduled, calling in sick instead.

Upon appellant's return to work on October 13, 1995, her station manager

presented her with a Letter of Warning, admonishing appellant for abuse

of sick leave.

Believing herself to be a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a complaint on February 9, 1996.

At the conclusion of the investigation, appellant requested that the

agency issue a final agency decision.

The FAD concluded that appellant had not established a prima facie case

of sex or age discrimination because she had presented no evidence that

similarly situated individuals, not in her protected classes, had been

treated differently under similar circumstances. The FAD also found

that the agency had articulated a legitimate non-discriminatory reason

for its action which appellant had been unable to prove to be a pretext

for discrimination.

From the FAD, appellant brings the instant appeal. On appeal, appellant

raises the contention that the agency's action were undertaken in

retaliation for her prior EEO activity.<1>

ANALYSIS AND FINDINGS

Based on McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); and

Loeb v. Textron. Inc., 600 F. 2d 1003 (1st Cir. 1973) (applying the

McDonnell Douglas analytical framework to cases of age discrimination),

the Commission finds that appellant failed to prove, by a preponderance

of the evidence, that the agency's articulated reasons for its actions

were a pretext for discrimination.<2> In reaching this conclusion,

we note that the record contains contemporaneously created documentary

evidence showing that in 1992 and 1994 appellant had been placed on

�Restricted Sick Leave.� Appellant does not dispute this nor does she

argue that the agency's placing of restrictions on her use of sick leave

had been unwarranted. In addition, appellant makes no effort whatever to

show that she was actually sick during the four unscheduled absences which

precipitated the Letter of Warning here at issue. Appellant's silence on

both of these points is strong evidence that she was, in fact, abusing

sick leave. See, Weinstein's Federal Evidence � 801.21[4][a] at 801-48

n.11 (1999); United States v. Jenkins, 779 F.2d 606 (11th Cir. 1986).

CONCLUSION

Therefore, after a careful review of the record, including appellant's

contentions on appeal, 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:

September 9, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1This contention

was not set forth in the complaint although it

appears to have been raised with the EEO counselor.

2Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary where, as here, the agency has

articulated a legitimate, nondiscriminatory reason for its actions,

i.e., appellant's extensive history of improper use of sick leave.

See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May

31, 1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether she has demonstrated by a

preponderance of the evidence that the agency's reason for its actions

was a pretext for discrimination. Id.; see also United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).