Sherida L. Cosby, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 16, 1999
01975914 (E.E.O.C. Sep. 16, 1999)

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