01ao5927
11-28-2000
Diania Estrada, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Diania Estrada v. United States Postal Service
01A05927
November 28, 2000
.
Diania Estrada,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Region),
Agency.
Appeal No. 01A05927
Agency No. 4F-945-0094-99
Hearing No. 370-A0-2033X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges she was discriminated against on the bases of race
(Hispanic), sex (female) and retaliation (prior EEO activity) when on
March 17, 1999, she was notified that she was disqualified from the
agency's Associate Supervisor Program (ASP). The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Window Clerk at the agency's
Hayward, California Post Office (�facility�), applied for a position
with the agency's ASP in July of 1998 pursuant to an agency posting.
As part of the application process, complainant was required to report
the number of unscheduled absences, including tardiness, for a one year
period.<2> The Manager of Customer Services reported that complainant
had two (2) unscheduled absences during the relevant time period after
obtaining this information from complainant's supervisor. Complainant
passed the suitability requirements and written examination for the ASP,
and after completing the oral interview was informed that she had been
selected for the ASP beginning on March 29, 1999.
Subsequently, the agency's ASP coordinator received information from
an ASP Review Committee member that complainant may not have met the
attendance requirement for ASP eligibility. Upon receipt and review of
complainant's attendance records, the ASP coordinator determined that
complainant had six (6) unscheduled absences during the relevant one
year period, thus she did not meet the suitability criteria for the ASP
and was therefore ineligible to participate. On March 17, 1999, the ASP
coordinator informed complainant that due to the additional attendance
information she received, her rating had been changed to �ineligible� and
she was disqualified from participating in the ASP. Complainant filed
a formal EEO complaint with the agency on May 5, 1999, alleging that
the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ concluded that complainant failed
to establish a prima facie case of disparate treatment discrimination.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees not in her protected classes were treated
differently under similar circumstances. In so finding, the AJ noted
that there were no other instances in which additional documentation
was received regarding an applicant's eligibility for the ASP after
that applicant had already been accepted into the ASP, resulting in
that applicant's being declared �ineligible.� The AJ further found
that complainant failed to establish a prima facie case of retaliation,
as there was no evidence that the ASP decision-makers were aware of
complainant's prior EEO activity at the time she was found ineligible
for the ASP.
The AJ further found assuming, arguendo, that complainant established a
prima facie case of discrimination or retaliation, the agency articulated
a legitimate, nondiscriminatory reason for its actions, namely the ASP
coordinator stated that pursuant to the ASP guidelines, complainant
was disqualified for the program due to an unacceptable number of
unscheduled absences during the relevant period. Finally, the AJ found
that complainant failed to establish that it was more likely than not
that the agency's articulated reasons were more likely than not a pretext
for discrimination or retaliation. The agency's final order implemented
the AJ's decision. Complainant has made no new contentions on appeal,
while the agency requests that its final order be affirmed.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We find that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward her race or age. The Commission agrees
with the AJ's finding that there is no evidence in the record that the
ASP coordinator was aware of complainant's race or sex prior to the time
she personally informed complainant that she was ineligible for the ASP.
Furthermore, we find that the evidence establishes that complainant was
disqualified from the ASP when her six (6) unscheduled absences during the
relevant period were discovered by the ASP coordinator, rather than due to
discriminatory or retaliatory animus. Investigative File, at Exhibit 6.
We thus discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
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
November 28, 2000
__________________
Date
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 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.
2 In order to be eligible for the ASP, an applicant was required to
have no more than three (3) incidents of unscheduled absences within
the relevant one year period. Investigative File, at Attachment B.