01A31294
02-27-2004
Jackie Y. Ochoa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Jackie Y. Ochoa v. United States Postal Service
01A31294
February 27, 2004
.
Jackie Y. Ochoa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A31294
Agency No. 4F-956-0119-98
Hearing No. 370-99-2284X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that at all relevant times complainant was employed
as a Distribution Clerk, at the agency's Post Office located in Redding,
California. Believing he was a victim of discrimination, complainant
sought EEO counseling, and then filed a formal complaint alleging that
the agency had discriminated against him on the bases of national origin
(Hispanic), color (brown), and disability, when, on May 11, 1998, the
agency gave him a Rehabilitation job not within his medical limitations,
and failed to provide a reasonable accommodation for his disability.
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 finding no
discrimination.
The AJ initially applied a disparate treatment analysis to the claim
that complainant was given a Rehabilitation job not within his medical
limitations, and concluded that complainant could not establish that the
reasons articulated by the agency were pretext for discrimination. The AJ
then considered whether the agency had failed to provide a reasonable
accommodation for complainant. The AJ initially found that complainant
was an individual with a disability pursuant to the Rehabilitation Act.
The AJ further found, however, that complainant was not a qualified
individual with a disability, as he could not perform the essential
functions of any position. The agency's final order implemented the
AJ's decision.
On appeal, complainant contends that the AJ's decision was incorrect,
noting that there was a lengthy delay after the hearing, before the
AJ issued the decision. Additionally, complainant asserts that the
AJ's denial of his requests for certain witnesses, was detrimental to
his case. Complainant also contends that he was not in a position to
know what other jobs might have been available at the agency that he
could perform despite his medical restrictions. The agency requests
that we affirm the final order.
Initially, we note that we do not discern an abuse of discretion on the
part of the AJ, when she refused to permit certain witnesses to testify.
We note that Administrative Judges have broad discretion in the conduct
of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110) at 7-8 to
7-14 (revised November 9, 1999); Bennett v. Department of the Navy,
EEOC Request No. 05980746 (September 19, 2000).
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
rather than treating this complaint as alleging denial of reasonable
accommodation on the basis of disability, this complaint is correctly
analyzed as alleging that the agency intentionally treated complainant
adversely, in his employment, because of his disability, national origin
and color. See Rucker v. United States Postal Service, EEOC Appeal
No. 07A10109 (February 13, 2004). Assuming arguendo that complainant
was a �qualified individual with a disability� within the meaning of the
Rehabilitation Act, we are not persuaded that complainant established a
prima facie case of discrimination on the bases of disability, national
origin or color because of the Administrative Judge's factual finding,
which is supported by substantial evidence in the record, that the
agency offered him a Rehabilitation job within what it believed were
his current medical restrictions. We thus discern no basis to disturb
the AJ's decision. 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 agency's final order.
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 27, 2004
__________________
Date