Jackie Y. Ochoa, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionFeb 27, 2004
01A31294 (E.E.O.C. Feb. 27, 2004)

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