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.