Emily E. Johnson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01a01865 (E.E.O.C. Nov. 17, 2000)

01a01865

11-17-2000

Emily E. Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Emily E. Johnson v. United States Postal Service

01A01865

11-17-00

.

Emily E. Johnson,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A01865

Agency No. 1J-461-0078-98

Hearing No. 240-99-5071X

DECISION

INTRODUCTION

Complainant filed an appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning her claim that the agency discriminated against her in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in

accordance with 29 C.F.R. � 1614.405.<1>

ISSUES PRESENTED

1) Whether complainant's appeal was filed in a timely manner; and

2) Whether complainant established, by a preponderance of the evidence,

that she was discriminated against because of her race (Black) and color

(black) when on December 23, 1997, she was terminated from her position.

BACKGROUND

The record indicates that the complainant received the final agency

decision on October 19, 1999.<2> By regulation, appeals to the

Commission must be filed within thirty (30) calendar days after a

complainant receives the final agency decision. Appeals are deemed

filed on the date received by the Commission, unless postmarked earlier.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified as 29 C.F.R. �

1614.604(b)). Prior to her appeal being received by the Commission

on December 16, 1999, the record indicates that complainant submitted

an earlier version to the Commission's District office located in the

Washington, D.C. area. This appeal was received by the District office

on November 15, 1999.

The Commission has held that where proper appeal rights have been given,

an appeal is untimely filed where the appeal is mailed to the wrong

office, even if it would have been timely filed if mailed directly to

the Commission. See Henry v. Department of Veterans Affairs, EEOC

Request No. 05901116 (November 30, 1990). In several recent cases,

however, the Commission has allowed exceptions to the Henry rule, where

it was evident that the complainant was earnestly attempting to preserve

his/her appeal rights. See Rodriguez v. Department of the Air Force,

EEOC Request No. 05940933 (June 2, 1995) (confused complainant mailed

appeal within the limitations period to an EEOC District Office); Thompson

v. Department of the Army, EEOC Appeal No. 05940588 (February 24, 1995)

(confused complainant timely filed appeal with agency's EEO Office);

Orr v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,

1994) (appeal filed with agency EEO Office, but agency failed to promptly

forward the appeal to the Commission). Because complainant filed an

appeal with the Commission's District office, prior to the expiration

of the 30-day time limitation period, we find that she was earnestly

attempting to preserve her appeal rights. Therefore, we find her appeal

is timely. We will now address the merits of complainant's appeal.

Complainant was a Distribution Clerk in the agency's Processing and

Distribution Center located in Indianapolis, Indiana. The record

indicates that complainant was terminated because she violated the terms

of a �Last Chance Agreement,� which was for unsatisfactory attendance.

The agreement, dated December 26, 1996, defined unsatisfactory attendance

as �no more than three unscheduled absences during any six month period

and no occasions of AWOL.� An unscheduled absence was defined as any

absence that an employee fails to report and/or document as required.

According to complainant, she was late for scheduled overtime on November

26, 1997; she provided documentation for a December 7, 1997, unscheduled

absence; and, on December 12, 1997, when she was charged AWOL after she

ran out of gas and construction workers had to assist her. Afterward,

complainant stated that she was told by her supervisor, A-1, to go back

to the construction site and obtain documentation from the construction

workers. Complainant maintained that, after returning to the site,

she found that the workers were transient; therefore, she was unable to

locate the individuals who had assisted her. Complainant maintained that

she returned to the site in excess of five times. Complainant felt that

it was not reasonable to terminate her for being twenty minutes late,

which she maintained should have been treated as an unexcused absence.

She also maintained that A-1, her immediate supervisor, and A-2, Acting

Distribution Operations Specialist, promised her that the AWOL charge

would be removed, if she drove a female employee to the hospital on

December 18, 1997. Complainant argued that, C-1 and C-2 (both Caucasian

females), were not treated in the same manner that she was. According to

complainant, C-1 had a Last Chance Agreement, but was not terminated.

She also stated that C-1 and C-2 both were AOT (AWOL from scheduled

overtime) on more than one occasion or did not report at all. Finally,

for the first time, complainant, in her affidavit, also maintained that

her termination was due to a disability (both feet)<3> and in retaliation

for engaging in prior EEO activity<4>.

A-1 (race/Black and color/black) testified that complainant was terminated

because of her failure to comply with the �Last Chance Agreement.� A-1

stated that complainant was aware that documentation was required for

any lateness. He also stated that it was complainant who indicated

that she would obtain documentation from the construction workers.

He noted, however, that said documentation was never provided. A-1 also

denied complainant's contention that she was promised the removal of the

AWOL charge in exchange for taking another employee to the hospital.

A-1 also stated that, to his knowledge, no other employee in his unit

failed to report or was late for overtime. When employees were late,

he stated that they were required to sign a late slip.

A-2, (race/Caucasian and color/white), testified that complainant, in

lieu of termination, could have received either an unscheduled absence

or an AWOL, if it had been her first occasion. He noted, however,

that �this decision is solely made by the supervisor.� A-2 maintained

that �to [his] knowledge no other employee under [his] authority has

had a �Last Chance Agreement,� which they violated.� He also denied

complainant's contention that she was promised the removal of the AWOL

charge in exchange for taking another employee to the hospital.

A-3, the Tour Two, Manager Distribution Operations (race/Black and

color/black), testified that complainant was terminated because

she violated the Agreement and had already gone through progressive

discipline, which included agreeing to enter a last chance status.

With respect to C-1 and C-2, A-3 maintained that she did not know

if either were listed as being AOT or AWOL, but both �lived out� the

duration of their agreements.<5>

Complainant filed her formal complaint in March 1998. Following an

investigation, she was provided with a copy of the investigative file and

notified of her right to request a hearing before an EEOC Administrative

Judge (AJ). Complainant requested such a hearing, but on September 27,

1999, the AJ granted the agency's motion for summary judgement. The AJ,

in determining that this matter could be disposed of without a hearing,

found that complainant failed to establish a prima facie case of race or

color discrimination. Additionally, the AJ found that the complainant

failed to establish pretext with respect to the agency's legitimate,

non-discriminatory reasons for removing her. The AJ noted that, on

October 28, 1997, when C-1 incurred an AOT, her �Last Chance Agreement,�

had already expired. The AJ also noted that the evidence presented by

the agency indicated that complainant, in addition to her December 12,

1997 AWOL, had incurred

five absences within a one month period.<6>

The agency issued a final decision on October 7, 1999, which adopted

the AJ's findings and recommendations.<7> After a review of the record

in its entirety, including consideration of all statements submitted on

appeal, it is the decision of the Equal Employment Opportunity Commission

to AFFIRM the agency's final decision because the Administrative

Judge's issuance of a decision without a hearing was appropriate

and a preponderance of the record evidence does not establish that

discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

____11-17-00__________________________

Date

1On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The record contains a copy of a certified mail return receipt that shows

that the final agency decision was received at her home on October 19,

1999.

3Complainant provided no other medical information about this matter.

4The record indicates that she engaged in EEO activity in 1991, 1994,

and 1996.

5The record, we note, indicates that C-2 was never issued a �Last Chance

Agreement.� On March 14, 1995, C-1 was issued a Notice of Removal, which

was modified to a �Last Chance Agreement.� She met the requirements of

the agreement and, on March 31, 1997, it was expunged from her records.

6November 4 - 12, 1997, 72 hours LWOP; November 23, 1997, .12 hours

LWOP/Late; November 26, 1997, 1.89 hours AOT; December 7, 1997, .52

hours LWOP/Late; and December 12, 1997, .40 hours AWOL.

7With respect to the bases of disability and reprisal, raised by

complainant in her affidavit, we, like the AJ, will assume that

complainant established a prima facie case of discrimination. For the

reasons stated above, however, she was unable to establish that the

reasons presented by management for her removal were pretextual.