0120070213
09-13-2007
Darrilyn Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darrilyn Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070213
Agency No. 4C450002805
Hearing No. 220-2006-00009X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's undated final order 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. Complainant claimed discrimination
based on reprisal for prior EEO activity when the agency issued
complainant a proposed letter of warning (LOW) in lieu of a fourteen-day
time-off suspension for failure to follow instructions and failure to
perform her assigned duties in a conscientious and effective manner,
on February 22, 2005.1
At the time of the events herein, complainant worked as a Supervisor,
Customer Service, at the agency's Mt. Healthy Branch in Cincinnati, OH.
Complainant's immediate supervisor (S1) stated that complainant had
an injury on August 10, 2004, but did not report it until December 23,
2004, although employees are required to report all accidents and injuries
immediately. According to S1, when she asked complainant why she delayed
in reporting her accident, complainant stated she did not know.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). In a decision without a hearing, the
AJ noted that complainant did not experience harm but found that the
agency articulated legitimate, nondiscriminatory reasons for issuing
the proposed discipline and that complainant failed to present evidence
demonstrating pretext. The agency adopted the AJ's finding.
Complainant did not file any statements or brief on appeal. After a
review of the record in its entirety, including consideration of all
statements submitted on appeal, it is the decision of the Commission to
affirm the final agency order, because the Administrative Judge(s issuance
of a decision without a hearing was appropriate, and the preponderance of
the evidence of record does not establish that discrimination occurred.
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 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 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
____9/13/07______________
Date
1 We affirm the agency's dismissal of complainant's claim that the agency
harassed her by withholding work-related information for failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant did not
raise the agency's dismissal action before the Administrative Judge,
and the AJ deemed that complainant had waived her right for further
consideration of the issue.
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0120070213
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070213