05A40065
12-11-2003
Jose Buenrostro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Jose Buenrostro v. United States Postal Service
05A40065
December 11, 2003
.
Jose Buenrostro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 05A40065
Appeal No. 01A33291
Agency No. 4F-940-0155-01
Hearing No. 370-A2-X2414
DENIAL OF REQUEST FOR RECONSIDERATION
Jose Buenrostro (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Jose Buenrostro v. United States Postal Service, EEOC Appeal
No. 01A33291 (September 11, 2003). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In his underlying complaint, complainant alleged he was discriminated
against in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), 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.,
on the bases of national origin (Hispanic), age (D.O.B. August 1, 1939),
and in reprisal for prior protected activity, when: (1) he was given too
much mail and was unable to finish the route to which he was assigned;
(2) he was given an unfair performance evaluation; and (3) he was
terminated from his Letter Carrier position. An EEOC Administrative Judge
(AJ) held a hearing and issued a decision finding no discrimination.
The AJ concluded that assuming, arguendo, complainant established a
prima facie case of discrimination on all alleged bases, he failed
to show that the agency's articulated legitimate, nondiscriminatory
reasons for its actions were mere pretext for unlawful discrimination.
The agency's final order implemented the AJ's decision, and on appeal,
the Commission affirmed the final order.
In his request for reconsideration, complainant reiterates numerous
contentions made at the hearing and on appeal, including his contention
that his evidence regarding a comparative employee that was treated more
favorably was not addressed in the AJ's decision, and that his supervisor
fabricated errors made by complainant in order to support complainant's
termination. After a review of complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to deny the request. As to
complainant's contention that the AJ failed to consider his comparative
employee, we note that the AJ assumed, arguendo, complainant established
a prima facie case of discrimination, and as such, any evidence as to
comparative employees treated more favorably than complainant need not
be specifically addressed. Further, we find that the record fails to
support complainant's contention that his supervisor fabricated errors
so as to support his termination. We remind complainant that a �request
for reconsideration is not a second appeal to the Commission.� Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at
9-17 (rev. November 9, 1999). Accordingly, the decision in EEOC Appeal
No. 01A33291 remains the Commission's final decision. There is no further
right of administrative appeal on the decision of the Commission on this
request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
December 11, 2003
__________________
Date