0520070882
09-27-2007
Jose Menchaca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose Menchaca,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520070882
Appeal No. 0120071469
Agency No. 4G780015906
DENIAL
Complainant timely requested reconsideration of the decision in Jose
Menchaca v. United States Postal Service, EEOC Appeal No. 0120071469
(July 27, 2007). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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).
The record reflects that complainant filed a formal complaint, alleging
that the agency discriminated against him in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Specifically, he alleged that the agency discriminated against him on the
bases of national origin (Mexican-American),1 disability (job-related
injury), age (D.O.B. 03/31/55), and reprisal for prior protected EEO
activity when he was removed from the Acting Supervisor Training Roster.
In relevant part, the record reflects that complainant's supervisor (S1)
asked complainant, who was dressed as a 204B (Acting Supervisor), to
change clothes so he could work his route. According to S1, complainant
agreed to return home and change clothes, but stated that he would file a
grievance and request the difference in pay between the 204B pay and the
carrier pay. S1 stated that he ultimately decided to let complainant stay
at the facility and had another carrier deliver complainant's route.
Following its investigation, the agency provided complainant with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
December 4, 2006 motion for a decision without a hearing despite
complainant's objection. In her February 6, 2007 decision, finding no
discrimination, the AJ determined that complainant failed to establish a
prima facie case of race, age, or disability discrimination. She then
assumed arguendo that complainant had established a prima facie case
of discrimination, but found that the agency articulated a legitimate,
nondiscriminatory reason for its action. Specifically, S1 stated that
complainant was removed from the Acting Supervisor Training Roster
because, when the agency requested that he carry his route, complainant
displayed an attitude that was not acceptable for an employee in the
204B Program.2 The AJ concluded that complainant failed to show that
the agency's reason was pretext for discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. Complainant appealed said order, and in EEOC Appeal
No. 0120071469, the Commission affirmed the agency's final order.
In relevant part, we found that the AJ's grant of a decision without
a hearing was appropriate, as no genuine dispute of material fact
existed; that the AJ's decision properly addressed the relevant facts
and referenced the appropriate regulations, policies and laws; and that,
construing the evidence in a light most favorable to the complainant,
the preponderance of the evidence of record did not establish that
discrimination occurred.
Complainant filed the present request for reconsideration in which he
argues that a genuine dispute of material fact exists. Specifically,
he asserts that, when he was removed from the Acting Supervisor Training
Roster, the agency replaced him with a younger male who was not engaged
in EEO activity.
The Commission finds that complainant has failed to meet his burden
to show that the Commission's decision in EEOC Appeal No. 0120071469
involved a clearly erroneous interpretation of material fact or law,
or that the decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
Although complainant has proffered a comparator who is not a member
of three of his protected classes (disability, age, and reprisal),
we find that, even if complainant has established a prima facie case
of discrimination, he has not provided any evidence to show that the
agency's articulated reason is pretext for discrimination. Accordingly,
this request for reconsideration is denied.
After reconsidering 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. The decision in EEOC Appeal No. 0120071469 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
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
___9/27/07_______________
Date
1 In his complaint, complainant listed his race as "Mexican-American." We
note, however, that the Commission recognizes this to be an indication
of national origin, not race.
2 Testimony reveals that, upon removing complainant from the supervisory
schedule, S1 stated to complainant, "[w]e are looking for individuals
who are willing to go the extra mile and at times sacrifice for the good
of the service."
??
??
??
??
2
0520070882
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0520070882