01983715
12-17-1999
Mary A. Elizondo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Mary A. Elizondo, )
Complainant, )
) Appeal No. 01983715
v. ) Agency No. 1F915100996
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final agency
(FAD) concerning her complaint of unlawful employment discrimination on
the bases of race (Hispanic), national origin (Mexican-American), color
(Brown), sex (Female), and age (5/14/53), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> We accept the appeal in accordance with
EEOC Order No. 960.001. For the reasons that follow, the Commission
AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a Bulk Mail Clerk, at the agency's Pasadena, California,
postal facility. Complainant alleges she was discriminated against
when her supervisor (S) denied her request for a schedule change, which
she needed in order to attend a class at a local community college.<2>
She contends that she provided official verification from the school
regarding her enrollment, but that S nevertheless denied the request.
Complainant claims that this denial was due to S's animus against her,
as evidenced by his approval of a schedule change for a younger Black
female who was also attending classes.
After unsuccessful EEO counseling, complainant filed a formal
EEO complaint. At the conclusion of the complaint investigation,
complainant requested a hearing before an EEOC Administrative Judge,
but subsequently withdrew this request. The agency then issued its FAD,
finding no discrimination. It is this determination which complainant
now appeals.
Based on the legal standards set forth in McDonnell Douglas v. Green,
411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
the agency found that complainant failed to establish a prima facie case
of discrimination on any of the claimed bases because she presented no
evidence that similarly situated individuals not in her protected classes
were treated differently under similar circumstances. Specifically,
the FAD found that S had granted the requested schedule for one month,
based on the complainant's enrollment form from the school, but asked
for official verification of registration, class times and dates in
order to extend the requested schedule beyond the one month period.
However, complainant did not comply. For this reason, the FAD concluded
that she was not similarly situated to the identified Black female
comparator who did provide this information to S in support of her
request for a schedule change. Notwithstanding this determination,
the FAD additionally found that complainant's failure to provide this
documentation was a legitimate nondiscriminatory reason for the denial,
and that complaint produced no evidence to suggest that it was merely
a pretext to mask unlawful discrimination.
On appeal, complainant contends that the enrollment form she provided
was adequate, and again claims that the real reason S denied her request
was due to discriminatory animus, and not �staffing concerns.� The
agency requests that we affirm its FAD. After careful consideration,
under the legal standards cited above, we concur with the findings and
conclusions in the FAD.
Review of the enrollment form in question shows that it verifies a twenty
dollar payment, but the course name, dates, and times are merely filled in
by complainant. S testified that he was requesting official verification,
in the form of a copy of complainant's official semester class schedule
registration, similar to what the comparator had routinely provided to
him over the past three years when requesting a schedule change for class
attendance. We find that this is a legitimate request, especially given
the �informality� of the enrollment form, and that �staffing concerns�
are a legitimate supervisory consideration when evaluating a long-term
schedule request (April 1996 to June 1996). Complainant provides no
evidence to suggest that a discriminatory factor, as opposed to her
failure to provide the requested verifying documentation, motivated S
to deny her request for a schedule change. Moreover, the fact that S
provided her with the requested schedule change for one month without
the official verification he sought further belies a finding of no
discrimination in this case.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the 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 the 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 the 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:
December 17, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
Equal Employment Assistant1 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 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2Complainant had also raised another issue concerning an AWOL (absence
without leave) charge. However, her appellate statement indicates
that issue is now resolved, and not part of this appeal. Accordingly,
we shall not further address it herein.