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).