Encarnacion Dagsaan, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionNov 21, 2000
01a05937 (E.E.O.C. Nov. 21, 2000)

01a05937

11-21-2000

Encarnacion Dagsaan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Encarnacion Dagsaan v. United States Postal Service

01A05937

November 21, 2000

.

Encarnacion Dagsaan,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Pacific/Western Region),

Agency.

Appeal No. 01A05937

Agency No. 4F-945-0136-99

Hearing No. 370-00-2181X

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

(Asian/Pacific Islander), sex (female) and national origin (Filipina),

when the agency denied her request for a schedule change on June

5, 1999. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission AFFIRMS the agency's order.

The record reveals that during the relevant time, complainant was

employed as a Letter Carrier at the agency's Oakland, California,

Airport Station facility. A review of the record establishes that in

June of 1999, complainant's second level supervisor (African-American

male) ordered all Letter Carriers to begin reporting to work fifty (50)

minutes later than usual due to a change in the �dispatches schedule.�

The record reflects that the revised start times were applied uniformly to

all carriers having residential routes, and complainant had a residential

route. Complainant sought a schedule change for personal convenience on

June 5, 1999 and was denied by the agency. Believing she was a victim

of discrimination, complainant filed a formal EEO complaint with the

agency on August 30, 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 found that complainant offered no evidence indicating that the

50 minute schedule adjustment constituted a adverse employment action

affecting the terms of her employment. As such, the AJ found that

scheduling and assigning workers are prerogatives of management and the

denial of a schedule change sought, as in the instant case, does not

constitute adverse treatment resulting in aggrievement. In addition,

the AJ found that complainant failed to provide evidence that schedule

change requests for personal convenience were granted to other similarly

situated employees not in complainant's protected classes, and thus,

complainant failed to establish a prima facie case of disparate treatment

discrimination. The agency's order implemented the AJ's decision.

On appeal, complainant contends that she requested a schedule change

for personal convenience due to a family medical issue, and the agency

denied her request contrary to the Family and Medical Leave Act (FMLA).

In response, the agency restates the position it took in its FAD, and

requests that we affirm its final decision.

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 agree with the

AJ's finding that complainant failed to establish a prima facie case of

discrimination based on her race, sex or national origin. In so finding,

we note there is no evidence that there were similarly situated employees

not in complainant's protected classes who were granted schedule changes

for personal convenience. While complainant referenced two employees

who were granted schedule changes, the record establishes that on one

occasion, an employee's request was granted due to the accommodation

of a medically documented requirement for treatment. Investigative

Report, at Affidavit B. In contrast, while complainant has included

on appeal a doctor's letter stating that she needed to be home by 4:00

p.m. for six months to attend to her minor child's medical needs, the

record reveals that this documentation was not submitted to the agency

at the time complainant's requested schedule change was denied.<2>

Complainant's immediate supervisor (S1) testified that there was no

medical documentation on file about complainant's daughter's medical

situation when the request at issue was denied.<3> Moreover, to the

extent complainant alleges the agency violated specific provisions

in the FMLA, the Commission notes that it does not have enforcement

responsibility for the FMLA. See Lee v. United States Postal Service,

EEOC Appeal No. 01965341 (September 4, 1998), at footnotes 2 and 4.

We thus discern no basis to disturb the AJ's decision that complainant

failed to establish a prima facie case of discrimination on any basis.

Therefore, after a careful review of the record, including complainant's

contentions on appeal and arguments and 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 21, 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 The record reveals that complainant's request for a schedule change

was denied on June 5, 1999. The doctor's letter regarding complainant's

daughter is dated June 30, 1999.

3 The record reflects that complainant submitted a statement in July

of 1999 stating that her daughter needed care at home between July 8,

1999 and September 30, 1999. S1 assisted complainant by giving her

one hour street assistance on several occasions so complainant could

leave work by 3:00 p.m., from August 5, 1999 through September 25, 1999.

Investigative Report, at Exhibit 5.