01997227
01-24-2002
Miguel B. Torres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Miguel B. Torres v. United States Postal Service (Pacific Area)
01997227
January 24, 2002
.
Miguel B. Torres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01997227
Agency No. 4F-950-0202-97
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 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleged that he was discriminated against on
the bases of race (Hispanic), color (brown), religion (Catholic), sex
(male), national origin (Mexican American), age (D.O.B. August 2, 1953),
disability (left leg injury), and in reprisal for prior protected activity
under Title VII, the Rehabilitation Act, and the ADEA when complainant
was denied back-pay for the period August 26, 1996 through September
12, 1996.
The record reveals that during the relevant time, complainant was employed
as a City Carrier at the agency's Tower Carrier Station in Fresno,
California. Complainant was issued a letter of removal effective August
26, 1996. As a result of a decision from the Regular Arbitration Panel,
complainant was reinstated with seniority and back-pay. In calculating
complainant's back-pay, the agency's Labor Relations Specialist concluded
that complainant was not entitled to back-pay for the period August 26
through September 12, 1996, as complainant had been out of work on medical
leave, and according to the documentation submitted by complainant in
accordance with his worker's compensation claim, his medical treatment
ended as of September 12, 1996.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December
22, 1997. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination on any of the alleged bases,
as complainant did not show he was treated less favorably under
similar circumstances than similarly situated employees outside his
protected classes. The agency also stated that assuming, arguendo,
complainant establish a prima facie case, it articulated legitimate,
non-discriminatory reasons for its actions which complainant did not
show were mere pretext for discrimination. Specifically, that agency
regulations state, �no back pay is allowed for any period during which
the person was not ready, willing, and able to perform the duties of
the postal position.� (ELM issue 12, 436.23) Complainant makes no new
contentions on appeal. The agency requests that we affirm its FAD.
Insofar as complainant contends that the agency has failed to provide
him with the amount of back-pay to which he is entitled, we find that
the issue must addressed to the Regular Arbitration Panel under which the
award was granted. To the extent that this matter is properly before the
Commission, and 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); Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979) (requiring a showing that age was a determinative factor,
in the sense that "but for" age, complainant would not have been subject
to the adverse action at issue); 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), we find that complainant has proffered no persuasive evidence to
show that the agency's actions were motivated by discriminatory animus
toward any of his protected classes.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
January 24, 2002
__________________
Date
1 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.