05A20457
05-22-2002
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)
05A20457
May 22, 2002
.
Miguel B. Torres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 05A20457
Appeal No. 01997227
Agency No. 4F-950-0202-97
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Miguel
B. Torres v. United States Postal Service, EEOC Appeal No. 01997227
(January 24, 2002). 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 the underlying decision, complainant alleged 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, 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., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., when
he was denied back-pay for the period August 26, 1996 through September
12, 1996. The agency issued a finding of no discrimination, concluding
that complainant failed to establish that the agency's legitimate,
nondiscriminatory reason for its actions was pretextual. Specifically,
the agency stated that regulations provide that, �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)
On appeal, the Commission affirmed the agency's final decision.
In his request for reconsideration, complainant contends that the prior
decision erred in finding that the issue in his complaint was not within
the purview of the Commission. The complainant also contends that the
basis of reprisal was not addressed, and states that he wishes to have
a hearing on this case.
Initially, we find that complainant was informed, at the conclusion
of his investigation, of his right to request a hearing before an EEOC
Administrative Judge, and the record reveals that complainant failed to
do so. Complainant is not entitled to a hearing at the stage. We also
find that the basis of reprisal was addressed in the prior decision,
along with all the other bases of discrimination alleged by complainant.
We conclude that the prior decision correctly found that the issue of
failure to provide back-pay should be addressed to the Regular Arbitration
Panel under which the award was granted. We further find that the prior
decision was also correct in concluding that, to the extent the matter
was properly before the Commission, complainant failed show that the
agency's actions were motivated by discriminatory or retaliatory animus
toward his protected classes.
After a review of the 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. The decision
in EEOC Appeal No. 01997227 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
May 22, 2002
__________________
Date