01975945
09-09-1999
Moneth Cabalbag, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Moneth Cabalbag v. United States Postal Service
01975945
September 9, 1999
Moneth Cabalbag, )
Appellant, )
) Appeal No. 01975945
v. ) Agency No. 1F-953-1055-94
) Hearing No. 370-96-X2364
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. Appellant alleges discrimination based upon
her national origin (Filipino) and sex (female) when, on August 1,
1994, her request for a change of schedule (COS) was not approved and
she was required to use leave without pay under the Family and Medical
Leave Act (FMLA). The appeal is accepted in accordance with EEOC Order
No. 960.001.
On November 30, 1994, 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 September 18,
1996, a hearing took place before an AJ. Thereafter, on April 22, 1997,
the AJ rendered her recommended decision finding no discrimination.
The agency subsequently adopted the AJ's recommended decision. It is
this agency decision which the appellant now appeals.
Appellant is employed as an LSM operator, Tour 3, with the agency.
Her scheduled tour of duty is from 3:00 p.m. to 11:30 p.m. During the
months of May and June, 1994, appellant worked under a COS which was
approved by her immediate supervisor (S1). Appellant's COS at the time
was 2:00 p.m. to 10:30 p.m. While appellant's original reason for
the COS request was a baby-sitting problem, in mid-June, appellant's
mother developed a medical condition that required appellant's care.
Because of her mother's medical condition appellant requested a second
COS from August 1, 1994 through September 2, 1994. On August 2, 1994, S1
denied appellant's request. S1 informed appellant that if she wanted to
leave work early to care for her mother, she could take unpaid leave under
the FMLA. Appellant was subsequently granted unpaid leave. Thereafter,
appellant requested a third COS for the period of August 1, 1994 through
October 28, 1994. Appellant also wrote the Plant Manager (S2) requesting
reconsideration of S1's denial of the COS request. On October 6, 1994 and
November 7, 1994, S1 approved two additional COS requests for appellant
which extended from October 11, 1994 through November 30, 1994.
The AJ found that appellant failed to establish a prima facie case of
national origin or sex discrimination. Specifically, the AJ found that
the identified comparative individuals were not similarly situated to
appellant. Appellant argued that she was treated less favorably than C1,
C2, C3 and C4 who fell outside of appellant's protective classes. The AJ
found that since S1 did not supervise C2, C3 or C4 and therefore was
not in charge of granting their leave requests, they were not similarly
situated to appellant. In addition, the AJ did not find that appellant
was treated less favorably than C1 since both C1 and appellant received
a COS for a similar period of time (approximately four months).
In addition to finding that appellant failed to establish a prima
facie case of discrimination, the AJ also found that appellant failed to
discredit the agency's articulated, legitimate, non-discriminatory reason
for its employment decision or otherwise prove discriminatory animus.
Specifically, the agency explained that appellant was needed at her
regularly scheduled time due to staffing and volume requirements.
The appellant failed to present evidence of pretext. Accordingly,
the AJ recommended a finding of no discrimination.
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 AJ accurately set forth the
relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. We note that appellant failed to raise
any contentions on appeal. Accordingly, we discern no basis upon which
to disturb the AJ's 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:
9/9/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations