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.