01a51393
10-05-2005
Jose Garza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose Garza v. United States Postal Service
01A51393
October 17, 2005
.
Jose Garza,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51393
Agency No. IF-924-0022-01
Hearing No. 340-2003-03412X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that the agency discriminated against him on the
basis of disability when his reasonable accommodation request not to be
assigned to Tour I was not granted.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact . 29 C.F.R. � 1614.109 (g). After a careful review of the record,
the Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. We find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's protected classes.
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
__________________
Date
FOR OFO MERIT CASES - INTERNAL CIRCULATION ONLY
INITIAL
DATE
TO: CARLTON M. HADDEN, Director, Office of Federal Operations
HILDA RODRIGUEZ, Director, Appellate Review Programs
APPEAL NUMBER
AGENCY NUMBER
REQUEST NUMBER
HEARING NUMBER
01A51393
IF-924-0022-01
340-2003-03412X
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLENAMESINITIALDATE REVIEWED(ATTORNEY):Virginia
AndreuVAO10/05/05(SUPERVISOR):Shelley Kahn (DIVISION DIRECTOR):Robbie
Dix III
COMPLAINANT(S):
Jose Garza
AGENCY:
United States Postal Service
DECISION:
affirm
STATUTE(S) ALLEGED:
Rehab Act
BASIS(ES) ALLEGED:
HP
ISSUE(S) ALLEGED:
A2
WHERE DISCRIMINATION IS FOUND (ONLY):
(A) BASIS(ES) FOR FINDING:
(B) ISSUES IN FINDING:
TYPIST/DATE/DISKETTE
VA0/10/05/05
SPELL CHECK
YES
TEAM PROOFED
DATE
(CHECK ALL APPLICABLE CODES)
MERITS DECISION CODES
MERITS DECISION CODES (CONTINUED)
x 4A - Merits decision
? 4B - OFO found discrimination
List basis codes:______________________________
List issue codes:______________________________
? Compensatory damages (C3) awarded?
x 4C - OFO found no discrimination/made no determination
re: discrimination
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found discr./breach
x 4F - Agency found no discr./breach
x 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed in part
and reversed in part, then (3L) code required if at
least one issue is remanded)
? 3L - OFO remanded PART of agency's merits decision
(NOTE: If breach is basis, use of 3L also requires
4I code; ALSO, do not use 3L with a 4B code)
? 3P - Adverse inference
? 4K - AJ found discrimination
x 4L - AJ found no discrimination
? 4M - AJ made no finding
x 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
x 4T - AJ issued Summary Judgment decision
x 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 3T - Decision on comp. Damages - DENIED
? 3U - Decision on comp. Damages - APPROVED
? 3V - Decision on comp. Damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to agency for remedies
? 4Q - Compliance required Revised - (10/4/02)
Appellate Review Program Companion Case Checklist
COMPLAINANT
AGENCY
Appeal/Request/Petition No.
Jose Garza
United States Postal Service
01A51393
OPEN
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
none
CLOSED
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
none
Virginia Andreu 10/05/05
______________________ _______________
ATTORNEY DATE