01A34015_and_01A34173
06-16-2004
Frank Montemayor, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Frank Montemayor, Jr. v. United States Postal Service
01A34015
June 16, 2004
.
Frank Montemayor, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal Nos. 01A34015 and 01A34173
Agency Nos. 1I-641-0040-01 and 4I-640-0089-98
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeals from the agency's final decisions in the above-entitled matters.
Per complainant's request, we find these appeals, Appeal Nos. 01A34015 and
01A34173, appropriate for consolidation, pursuant to 29 C.F.R. � 1614.606.
In complainant's complaint, filed on or about April 24, 1998, Agency
No. 4I-640-0089-98, complainant alleged that the agency discriminated
against him on the bases of race (Hispanic), in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq., age (D.O.B. March 30, 1943), in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and reprisal for prior EEO activity (for testifying at a Merit Systems
Protection Board (MSPB) hearing wherein a co-worker alleged that he was
subjected to race and age discrimination under Title VII and the ADEA),
when, on January 26, 1998, complainant was denied retraining as an Ad-Hoc
Driving Instructor Examiner (DIE). In his complaint, filed on or about
July 19, 2001, Agency No. 1I-641-0040-01, complainant alleged that
the agency discriminated against him on the bases of race (Hispanic),
in violation of Title VII, and reprisal for prior EEO activity (arising
under Title VII and the ADEA) when, on April 24, 2001, and May 8, 2001,
complainant was not given the opportunity to serve a detail as a DIE.
At the conclusion of the investigation on each complaint, complainant
was provided a copy of the investigative file and requested a hearing
before an EEOC Administrative Judge (AJ). On Agency No. 4I-640-0098-98,
the AJ issued a decision without a hearing finding no discrimination.
The agency issued a final action that implemented the AJ's decision
on December 22, 2000. Complainant appealed the agency's decision to
the Commission, and the Commission, finding that the AJ erred when he
concluded that there were no genuine issues of material fact in this
case, reversed the agency's final action and remanded the matter to
the agency to submit the complaint file to the EEOC St. Louis District
Office for a hearing. Complainant also requested a hearing before an
AJ regarding Agency No. 1I-641-0040-01. However, on January 21, 2003,
complainant withdrew his hearing requests for both complaints. Therefore,
a final decision was issued on each complaint. In both final decisions,
the agency issued findings of no discrimination.
On appeal, complainant argues that the investigative files are incorrect,
incomplete and misleading. Complainant could have used the hearing
process to more fully develop the record, and call further attention
to any incorrect or misleading information contained in the agency's
investigative file. However, complainant opted to withdraw his hearing
requests. We find the record to be adequately developed for disposition,
and complainant's assertions that the record is inadequately developed
will not be entertained further on appeal.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decisions
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
June 16, 2004
__________________
Date