01975914
09-16-1999
Sherida L. Cosby, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sherida L. Cosby v. United States Postal Service
01975914
Septmeber 16, 1999
Sherida L. Cosby, )
Appellant, )
) Appeal No. 01975914
v. ) Agency No. 1D-231-1127-95
) Hearing No. 120-96-5383X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________ )
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. �621, et seq. Appellant alleges
discrimination based upon her race (Black), sex (Female), age (46), and
reprisal (prior EEO activity) when, on January 12, 1995, she received a
Notice of Suspension of 14 Days for failure to be regular in attendance.
The appeal is accepted in accordance with EEOC Order No. 960.001.
On May 17, 1995, appellant filed a formal complaint alleging
discrimination as referenced above. Appellant's complaint was accepted
for processing. Following an investigation, appellant requested a
hearing before an EEOC Administrative Judge (AJ). On May 11, 1997,
appellant withdrew her request for a hearing and requested a final
agency decision. Thereafter, on June 23, 1997, the agency issued its
final agency decision finding no discrimination on all issues. It is
this agency decision which the appellant now appeals.
On January 12, 1995, appellant, a Part-Time Regular Clerk, received a
Notice of Suspension of 14 Days for failure to be regular in attendance.
According to appellant's attendance record she took unscheduled sick/late
leave as follows: (1) 8.0 hours on 8/18/94; (2) .97 hours on 9/26/94;
(3) 4.0 hours on 11/03/94; (4) 1.05 hours on 12/27/94; and (5) 8.0 hours
on 12/29/94. In addition to the unscheduled leave the responsible
official (RO) considered appellant's past record of receiving: (1)
a Letter of Warning on 11/18/93 for unsatisfactory attendance; and (2)
a Seven Day Suspension on 7/8/94 for unsatisfactory attendance.
The agency found that appellant failed to establish a prima facie case
of race, sex or age discrimination. Specifically, the agency noted
that appellant cited one comparison employee (C1) (White, female,
age unknown) who she alleged was treated more favorably. The record
reveals that C1 was a full-time clerk who worked eight-hour days.
Appellant was a part-time clerk who worked four-hour days. Moreover, the
record does not indicate that C1 had any history of attendance problems.
Accordingly, the agency did not find C1 a similarly situated comparison.
With respect to reprisal discrimination, the agency found that appellant
did establish a prima facie case of discrimination.
However, the agency determined that appellant failed to discredit the
agency's articulated, legitimate, non-discriminatory reasons for its
employment action. Specifically, the agency explained that appellant had
a history of attendance problems and had been previously disciplined as
referenced above. When appellant's attendance did not improve over the
next four months, appellant was issued the next action in progressive
discipline (14-day suspension) on January 12, 1995. The RO also noted
that appellant filed a grievance which was denied. The agency found that
appellant failed to present or even allege specific probative evidence
indicating pretext or discriminatory animus. Accordingly, the agency
found no discrimination as alleged.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the agency accurately set forth
the relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. Based upon the evidence of record,
the Commission discerns no basis to disturb the agency's finding of no
discrimination. We note that appellant failed to raise any contentions
on appeal. Accordingly, we discern no basis upon which to disturb
the finding of no discrimination and hereby AFFIRM the agency's final
decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407.
All requests and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction in
which your action would be filed. 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 (Z1092)
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:
9/16/99
_______________ _______________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations