01985584
03-29-2000
Joseph Cardenas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/West Region), Agency.
Joseph Cardenas v. United States Postal Service
01985584
March 29, 2000
Joseph Cardenas, )
Complainant, )
) Appeal No. 01985584
v. ) Agency No. 1F-901-0194-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/West Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).<2> Complainant alleged that he was discriminated against on
the bases of his national origin (Hispanic), his physical disability (knee
and back) and in reprisal for prior protected activity when his request
for leave under the Family Medical Leave Act (FMLA) was disapproved.
The record reveals that during the relevant time, complainant was
employed as a Mailhandler at the agency's Processing and Distribution
Center in Los Angeles, California. Believing the agency discriminated
against him as referenced above, complainant sought EEO counseling and
subsequently filed a formal complaint on May 15, 1997. At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). After a pre-hearing conference, the AJ
remanded the complaint to the agency, recommending that it be dismissed
on procedural grounds. The agency rejected the AJ's recommendation
and issued a final decision finding no discrimination. It is from this
final decision that complainant now appeals. Neither party submitted
a statement in support of or in response to the appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
the Commission, without addressing whether complainant is a qualified
individual with a disability within the meaning of the Rehabilitation
Act, agrees with the agency that complainant failed to establish a prima
facie case of discrimination on any of his alleged bases. In reaching
this conclusion, we find that complainant fails to proffer any evidence
from which, if otherwise unexplained, we could infer a discriminatory or
retaliatory motive. Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978). Complainant fails to name any similarly situated individual
outside of his protected classes who, under similar circumstances, was
treated more favorably than he was, and we note that while complainant
has nor record of prior protected activity, he alleges that his wife
filed a complaint against the same responsible management official (RMO)
complainant names in the instant complainant. The RMO attested that
complainant's wife had not worked under the RMO's supervision for the
last four years, and there is no evidence of a nexus between his wife's
alleged protected activity and the disapproved leave at issue herein.
The Commission notes that as soon as complainant provided adequate medical
certification, management approved his request for FMLA leave. Although
complainant contends that the RMO requested the medical certification
for the purpose of delaying complainant's pay and thus causing him undue
financial hardship, there is no evidence to support this contention or
suggest that the RMO's action was motivated by discriminatory animus.
Therefore, after a careful review of the record we AFFIRM the agency's
final decision.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 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.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found at the
Commission's website at www.eeoc.gov.
3 The Commission finds that the agency properly rejected the AJ's
recommendation that this claim be dismissed on procedural grounds.
64 Fed. Reg. 37,644, 37,65 (1999)(to be codified at 29 C.F.R. ��
1614.107(a)(1) and (5)). The grant or denial of leave affects the
terms and conditions of employment, and the claim is not moot since if
complainant was to prevail on the merits, he would be entitled to proven
compensatory damages.