01986243x
05-18-2000
Edith A. Banks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edith A. Banks, )
Complainant, )
) Appeal No. 01986243
v. ) Agency No. 1H301001097
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The complainant timely initiated an appeal of a final agency decision
dated July 24, 1998, concerning her complaint of unlawful employment
discrimination on the basis of sex (female), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The complainant alleges she was discriminated against when on
October 8, 1996, she was terminated for taking an extended break. The
appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, the complainant was
employed as a casual employee, at the agency's Atlanta Processing and
Distribution Center facility. The complainant alleged that when she
returned from a break late on the night of October 8, 1996, the supervisor
terminated her on the spot, without warning. She further alleged that
male employees committed the same infraction without so much as an
oral admonishment. The complainant stated that she did not remember the
names of the male employees who took extended breaks except for �Slick.�
Believing she was a victim of discrimination, the complainant sought
EEO counseling and, subsequently, filed a complaint on June 11, 1997.
At the conclusion of the investigation, the complainant failed to respond
to the agency's letter informing her of her appeal rights, so the agency
issued a final decision on July 22, 1998.
The agency concluded that the complainant failed to establish a prima
facie case of sex discrimination because she presented no evidence that
similarly situated individuals not in her protected classes were treated
differently under similar circumstances. Additionally, the agency found
that the complainant failed to show that the agency's reason for her
termination was a pretext for intentional discrimination. Moreover,
the agency found that the complainant failed to show how �Slick� was
treated differently or whether management was even aware that �Slick�
committed the same infraction that she had.
On appeal, the complainant submitted a copy of her Investigative
affidavit. The agency made no arguments on appeal.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
the Commission agrees with the agency that the complainant failed to
establish a prima facie case of sex discrimination because she provided
no comparison employee nor any argument or evidence that would infer that
the agency's action was taken because she is female. In reaching this
conclusion, we note that the supervisor averred that he had previously
given the complainant several warnings regarding her extended break
periods to no avail.
The Commission finds that the complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that the complainant does not dispute that she received previous
warnings from the supervisor, nor that she was not late coming back from
a break on the night that she was terminated.
Therefore, after a careful review of the record, including the arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
05-18-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.