0120063963
01-07-2009
Roque C. Torres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roque C. Torres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200639631
Hearing No. 550-2006-00063X
Agency No. 4F-945-0238-05
DECISION
On June 15, 2006, complainant filed an appeal from the agency's May 17,
2006 notice of final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a full time Rural Carrier at the agency's Fairfield Post Office in
California.
On November 22, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of disability (knees) when:
1. Since September 9, 2005, complainant has been denied accommodations
within his restrictions; and
2. On September 21, 2005, complainant was issued a letter of warning
for attendance dated September 14, 2005.
At the conclusion of the investigation, complainant was provided 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. On April 13, 2006, the AJ issued a Notice and
Order informing the parties that he was considering issuing a decision
without a hearing. The AJ gave the parties until May 1, 2006, to submit
a response. Additionally, the AJ stated that he will construe failure
to respond to the Notice as a withdrawal of complainant's request for a
hearing and, without further notice, he will return the complaint file
to the agency for issuance of a final decision without a hearing.
On May 1, 2006, the agency filed their response to the AJ's Notice and
a Motion to Suspend Discovery. Complainant did not file a response by
May 1, 2006.
On May 2, 2006, the AJ issued an ORDER RETURNING COMPLAINT TO AGENCY FOR
FINAL DECISION BASED ON COMPLAINANT'S WITHDRAWAL OF REQUEST FOR HEARING.
Specifically, the AJ stated that based on complainant's failure to
respond to his April 13, 2006 Notice and Order by May 1, 2006, the AJ
was construing complainant's failure to respond as a withdrawal of his
request for a hearing, and was returning the complaint to the agency
for issuance of a final decision.
On May 3, 2006, complainant's representative filed a response to the AJ's
Notice. In his response, complainant's representative explained that
on April 14, 2006, his father had a heart attack which required him to
travel to Missouri. The representative explained that he did not return
to Michigan until Friday, April 28, 2006, and did not return to his office
until May 1, 2006. The representative stated that although the AJ's
Order arrived at his office on April 17, 2006, since he was out of town
on a family emergency, he did not review the Order until May 3, 2006.
On May 17, 2006, the agency issued a notice of final decision.
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged.
Upon review, we find that the AJ improperly dismissed complainant's
hearing request. We note the Commission has held that dismissal of
a complaint is not appropriate in those cases were the complainant's
"failure to prosecute" consists only of his or her lack of reply
to the AJ's notice of intent to issue a decision without a hearing.
See Dixon v. Department of the Navy, EEOC Appeal No. 01996069 (June 6,
2000); Casarez v. Department of the Treasury, EEOC Appeal No. 01A10673
(June 1, 2001).
As described above, the case was sent back to the agency which issued
a decision on the merits of the complaint. Upon review we find the
present case appropriate for a decision without a hearing. With regard
to issue 1, we find that complainant has not shown that he needed to be
assigned a postal vehicle in order to perform the duties of his walking
route. The agency further showed that no other similarly situated
carriers assigned to walking routes were assigned postal vehicles.
With regard to issue 2, we find the agency has articulated a legitimate,
non-discriminatory reason for issuance of the September 14, 2005 letter
of warning, that from January 8, 2005, through September 8, 2005,
complainant was tardy 35 times and had twelve unscheduled absences.
Complainant failed to show that the agency's articulated reason was a
pretext for disability discrimination. Accordingly, the agency's final
decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 7, 2009
__________________
Date
1 This appeal has been redesignated with the above-referenced appeal
number.
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0120063963
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120063963