01965575
10-23-1998
Liza Maca, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Areas), Agency.
Liza Maca v. United States Postal Service
01965575
October 23, 1998
Liza Maca, )
Appellant, )
)
v. ) Appeal No. 01965575
) Agency No. 4-J-604-1282-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Areas), )
Agency. )
______________________________)
DECISION
INTRODUCTION
On July 19, 1996, Liza Maca (appellant) timely filed an appeal to the
Equal Employment Opportunity Commission (the Commission or the EEOC) from
a final decision of the Postmaster General, United States Postal Service
(the agency). The final decision concerns appellant's Equal Employment
Opportunity (EEO) complaint, alleging discrimination based on sex (female)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEC Order No. 960.001.
ISSUE PRESENTED
Whether appellant was discriminated against on the basis of sex (female)
when, on May 12, 1995, her position with the agency was terminated.
CONTENTIONS ON APPEAL
Appellant submits contentions on appeal which have been reviewed and
considered by the Commission.
BACKGROUND
Appellant filed this formal EEO complaint on September 8, 1995, alleging
discrimination as set forth in the above-entitled statement, Issue
Presented. Following an investigation of this complaint, the agency
informed appellant that she could request either an EEOC administrative
hearing or a final agency decision (FAD), based on the existing record.
Appellant requested a FAD which was issued on June 20, 1996 and found
no discrimination. Appellant now appeals the FAD.
The agency found that appellant failed to establish a prima facie case of
sex discrimination because she failed to identify any similarly situated
employees who were treated differently in similar circumstances.
The agency further determined that it articulated legitimate,
nondiscriminatory reasons for appellant's termination. Specifically,
the agency stated that appellant failed to come into work and perform her
assigned duties. The agency also stated that appellant was repeatedly
insubordinate, despite the agency's repeated efforts to accommodate
her need to breast-feed her child. The agency concluded that appellant
did not present evidence to show that these reasons were pretextual.
The agency noted that it had offered to accommodate, in numerous ways,
appellant's need to nurse her baby - by modifying her schedule, by having
her work a split-shift, by having her bring her daughter to work for
feeding, and by having her make arrangements to pre-pump breast milk for
use at home. The agency stated that appellant was nonetheless steadfast
about remaining at home. Finally, the agency also noted that appellant's
case was heard in arbitration in November 1995 and that the arbitrator
upheld appellant's termination.
After a careful review of the record, we find that the agency correctly
determined that appellant failed to prove her claim of sex discrimination.
We find that the agency's explanation regarding its failure to grant
appellant's request for additional leave is supported by a preponderance
of the evidence. Appellant failed to prove that discrimination more
likely motivated the agency's actions. Appellant states on appeal that
there were similarly situated employees, outside of her protected class,
who were not required to provide documentation for leave requests which
were not requests for sick leave. However, appellant fails to identify
any such employees. Appellant also fails to identify any similarly
situated employees who were not terminated under similar circumstances.
Finally, we note that the agency applied the same policy of accommodation
to another nursing mother who was ready to return to work after maternity
leave but whose newborn baby required breast-feeding. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision finding no discrimination.
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:
Oct 23, 1998
______________ ________________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations