Laurie A. Murrell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.

Equal Employment Opportunity CommissionMar 30, 2000
01984216 (E.E.O.C. Mar. 30, 2000)

01984216

03-30-2000

Laurie A. Murrell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.


Laurie A. Murrell v. United States Postal Service

01984216

March 30, 2000

Laurie A. Murrell, )

Complainant, )

) Appeal No. 01984216

v. ) Agency No. 4I-680-0119-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Mid West Region), )

Agency. )

)

DECISION

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

concerning her complaint of unlawful employment discrimination on the

bases of sex (female), physical disability (shoulder), and in retaliation

for prior EEO activity in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq. and the Rehabilitation Act

of 1973, as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges she

was discriminated against when she was marked Absent Without Leave (AWOL)

on Thursday, April 10, 1997 and Friday, April 11, 1997. The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).<2> For the following reasons, the Commission

affirms the FAD.

The record reveals that during the relevant time, complainant was

employed as a PTF Distribution Clerk at the agency's Scottsbluff, Nebraska

facility. On Tuesday, April 7, 1997, the Supervisor of Customer Service

(SCS) informed complainant that the schedule had been changed and that

complainant was now scheduled for 5:00 a.m. on April 10th and 11th as

well as April 9th. Complainant called in sick on Wednesday, April 9,

1997 and failed to report to work on Thursday or Friday, claiming not to

know that she was scheduled. The Officer in Charge (OIC) made several

attempts to contact complainant via telephone on Friday morning. However,

complainant, who admitted to receiving a phone call on Friday morning

from someone who told her that she was being charged AWOL, refused to

answer the OIC's calls. The OIC, whose detail ended on Monday, April 14,

1997, prepared a PS Form 3971 charging complainant with AWOL. On April

22, 1997, the new Postmaster, who attested that she was trying to start

on a "clean slate," decided against charging complainant with AWOL and

recorded April 10th and April 11th as complainant's non-scheduled days.

Believing the agency discriminated against her, complainant filed a

complaint on June 11, 1997. At the conclusion of the investigation,

complainant requested that the agency issue a FAD from which complainant

now appeals. Complainant did not submit a statement in support of

her appeal. The agency requests that we affirm the FAD wherein the

agency found that complainant failed to establish a prima facie case of

discrimination under any of her alleged bases.

Without determining whether complainant is a qualified individual with a

disability within the meaning of the Rehabilitation Act and based on the

standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and Prewitt v. United States Postal Service, 662 F.2d 292 (5th

Cir. 1981), the Commission agrees with the agency that complainant failed

to establish a prima facie case of discrimination. In reaching this

conclusion, we note that complainant presents no evidence in support of

her assertion that she did not know she was scheduled to work on April

10th and April 11th. We credit CSC's attestation that she personally

told complainant about the schedule change. Additionally, the schedule

was set by the end of the day on Tuesday, April 8, 1997, and complainant

was responsible for checking it before she left for the day. Moreover,

we find that complainant lied to the OIC about not receiving the OIC's

telephone calls. Accordingly, we find that complainant was not meeting

the legitimate expectations of her position, and we decline to infer

discriminatory animus in the agency's decision to place complainant on

AWOL, a decision which was later rescinded. Therefore, after a careful

review of the record, including arguments and evidence not specifically

addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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:

March 30, 2000

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

________________________

Equal Employment Assistant

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.

2 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.