01A20837_r
06-13-2002
Enrique C. Garcia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Enrique C. Garcia v. United States Postal Service
01A20837
June 13, 2002
.
Enrique C. Garcia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20837
Agency No. 4G-760-0216-98
Hearing No. 360-99-8811X
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) pertaining to 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
Complainant claimed that he was discriminated against on the bases of
sex, age, and in reprisal for prior EEO activity when on March 7, 1998,
he was denied requested time off (sick leave).
The record reveals that during the relevant time, complainant was
employed as a Full Time Regular City Carrier at the agency's Lubbock,
Texas facility. Believing that he was the victim of discrimination based
on sex, age and in reprisal for prior protected activity, complainant
sought counseling and subsequently filed a formal EEO complaint on May
27, 1999.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. The record
in the case reflects that complainant initially requested a hearing.
The record reveals that the AJ noted that the agency's investigation
referred only to the denial of complainant's leave on March 7, 1998.
On April 14, 1999, the AJ issued a remand order to the agency for further
investigation on the issue of purported leave denials on March 9, 10, and
11, 1998. Upon remand, the agency sent a letter dated April 19, 1999, to
the AJ, and therein, the agency argued that in its Acceptance Letter dated
June 16, 1998, complainant did not appeal the specific issue accepted for
investigation �[Y]ou were denied sick leave March 7, 1998" and, therefore,
it should be the only issue addressed in this investigation. The record
contains the AJ's letter dated May 11, 1999. Therein, the AJ concluded
that she considered the agency's request and believed that the regulations
allow for such investigation. Specifically, the AJ states �the proximity
of dates, the involvement of the same ARO, the basis of retaliation,
and the personal situation of Complainant on these dates clearly make the
incidents of March 9, 10, and 11 �like or related' to that of March 7."
Thereafter, the agency conducted an expanded investigation of the amended
issue: on March 9, 10, and 11, 1998, complainant was denied leave and
submitted to the AJ a Supplemental/Expanded Investigation report dated
May 24, 1999. On September 28, 2001, the AJ issued a decision without
a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of sex,
age and reprisal discrimination because he is a member of protected
class and he was denied leave, which is an adverse action. The AJ
further concluded that complainant established a prima facie case of
retaliation because he participated in statutorily protected activity
and that his employer knew about the participation.
The AJ concluded, however, that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
filled out a leave request form on March 7, 1998, for sick leave, but
was charged with Leave Without Pay. Complainant had requested the time
off because he experienced stress as a result of the terminal illness of
his father. The record reflects that complainant's supervisor explained
to complainant about the Family Medical Leave Act and indicated that
he would provide complainant with necessary forms. The record further
reflects that complainant responded that he was not interested in pursuing
this option, as it would necessitate corresponding with his father's
physicians, who complainant determined had simply sent his father home
without providing proper medical assistance. Complainant's supervisor
denied complainant's March 7, 1998 leave request because she thought that
these were her instructions from the Station Manager. The AJ noted that
the record reflects that complainant's Leave Without Pay was changed to
sick leave as part of a grievance settlement.
Regarding the claims that complainant was denied leave on March 9, 10,
and 11, 1998, the AJ found that there was no evidence indicating that
complainant requested leave and no evidence to indicate that such a
request was denied. The AJ noted that although no time off was requested
for March 11, 1998, complainant was nevertheless provided with annual
leave, due to his father's death on that date. The AJ concluded that
complainant failed to proffer evidence that the agency's reason was mere
pretext for discriminatory or retaliatory animus. The agency's final
order implemented the AJ's decision. Complainant makes no new contentions
on appeal, and the agency requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not a discriminatory
intent existed is a factual finding. See Pullman-Standard v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes. We discern no basis to disturb
the AJ's decision and, therefore, AFFIRM the agency's final decision.
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
June 13, 2002
__________________
Date