01A40423_r
02-02-2005
Isidor Meza, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Isidor Meza, Jr. v. United States Postal Service
01A40423
February 2, 2005
.
Isidor Meza, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40423
Agency No. 4-G-770-0229-01
Hearing No. 330-A2-8004X
DECISION
Complainant timely initiated an appeal from the agency's final action
finding no discrimination regarding his consolidated complaint.
The record reveals that during the relevant time complainant, a Modified
Supervisor, Customer Service, grade EAS-16 in the Safety Office, at the
agency's Houston, Texas facility, filed three formal EEO complaints
(Agency Case Numbers 4G-770-0229-01, 4G-770-0259-01, 4G-0418-01)
alleging that the agency had discriminated against him on the bases of
race (Hispanic), color (brown), national origin (Mexican American), sex
(male), age (D.O.B. 02/02/50), disability (shoulder injury), religion
(Catholic), and in retaliation for prior EEO activities when:
Complainant's leave buy back was not honored;
Complainant was told not to speak Spanish;
During March and April 2001, complainant was informed that his leave
buy back request had not been processed;
As of April 10, 2001, complainant had not been scheduled or given the
opportunity to accumulate 20 hours of required training as needed to
qualify for EVA;
From October through December 2000 and continuing, complainant's
new manager made changes to his limited duty pay by not honoring an
agreement that he would be paid 8 hours by the agency for 4 hours of
work and altered it to the agency paying him 4 hours and the Office of
Workers' Compensation paying him 4 hours.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision dated September
26, 2003, finding no discrimination. The AJ stated that assuming arguendo
that complainant established a prima facie case of discrimination on all
of the alleged bases, the agency articulated legitimate, nondiscriminatory
reasons for its actions.
With regard to issues (1) and (3), the AJ noted that the testimony and
record indicate that complainant's leave buy back was not honored because
when he was advised by Employment Standards Administration that he had
to pay his portion to the agency before he could buy back his leave,
he did not submit the amount requested. With regard to issue (2),
the AJ noted that the record reveals that complainant's supervisor,
Person B, asked him to take a call from a Spanish speaking customer and
that a co-worker made a remark �hey, no Spanish speaking in here.� The
AJ found that complainant never told his supervisor about the comment
or that it was offensive to him. The AJ found that the comment not
to speak Spanish was an off hand remark by a co-worker that was not
sufficient to constitute race or national origin discrimination.
The AJ noted that complainant also claimed that he was subjected to
discrimination based on religion when in a conversation with Person A,
she suggested that he attend a non-Catholic church. The AJ noted that
Person A testified that as a friend she suggested the church because of
his troubles finding solutions about his health problems.
With regard to issue (4), the AJ noted that complainant testified that
he received the 20 hours of training and did get an EVA bonus because
of his work hours. With regard to issue (5), the AJ noted that Person A
testified that according to national regulations the Injury Compensation
Office made an error in paying him 8 hours of work when he only worked
4 hours. Therefore, the agency stated that complainant was notified
and the error was corrected.
The AJ found that the agency articulated legitimate, non-discriminatory
reasons for its actions at issue in the complaint. The AJ found that
complainant failed to show that the reasons given by the agency were
not the real reasons for its actions or that the actions were motivated
by discrimination.
The agency issued an October 9, 2003 final action fully implementing
the AJ's decision.
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 discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race, color, national origin,
sex, age, religion, or disability.<2> We note that regarding claim 3
we find that complainant was never actually ordered not to speak Spanish
by the agency. We discern no basis to disturb the AJ's decision.
Therefore, we AFFIRM the agency's final action finding no discrimination.
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
February 2, 2005
__________________
Date
1Complainant's complaints were consolidated
for processing under Agency Number 4G-770-2229-01. Originally,
his consolidated complaints contained a sixth allegation that on
April 3, 2001, his REDRESS mediation on Agency Case 4G-770-0259-01
and 4G-770-0229-01 was cancelled. The agency issued a July 19,
2001 Acknowledgment of Consolidation Partial Acceptance/Dismissal in
which the agency dismissed issue (6) on the grounds that it alleged
dissatisfaction with a previously filed complaint. Complainant has
not clearly challenged this dismissal on appeal, but to the extent that
complainant may be challenging the dismissal of claim (6), we find that
claim (6) was properly dismissed for failing to state an independent
claim of discrimination pursuant to 29 C.F.R. � 1614.107(a)(1).
2We do not address in this decision whether complainant is a qualified
individual with a disability under the Rehabilitation Act.