01985433
04-13-2001
Ruben Chavez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Area), Agency.
Ruben Chavez v. United States Postal Service
01985433
4/13/01
.
Ruben Chavez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01985433
Agency No. 4F-950-1202-96
Hearing No. 370-97-X2265
DECISION
Complainant timely initiated an appeal from the agency's final decision
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges he was discriminated against on the bases of national origin
(Hispanic), sex (male), and reprisal (prior EEO activity), when: (1)
on May 29, 1996, he received a 14-day suspension; and (2) on April 2,
1996, his supervisor kept a log sheet on his every movement. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, a Carrier Technician at the agency's
Milpitas, California facility, filed a formal EEO complaint with the
agency on August 7, 1996, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
In her decision, the AJ found complainant's claim that he was
discriminated against when he was issued the 14 day suspension was
rendered moot by a grievance settlement. The AJ found no evidence that
complainant lost any pay as a result of the suspension. Furthermore,
the suspension was removed from complainant's file. As such, the
AJ found that the grievance settlement eradicated the effects of the
discrimination, and the claim was rendered moot.
As for complainant's second claim, the AJ found complainant failed to
make timely contact with an EEO Counselor. In that regard, the record
revealed complainant first made EEO contact on May 29, 1996, and alleged
he was subjected to harassment on April 2, 1996 when his supervisor kept a
log book on his every movement, and discriminated against on May 29, 1996
when he received the suspension. The AJ found that complainant failed to
timely contact an EEO Counselor with respect to his harassment claim in
that he contacted an EEO Counselor after the 45 day period had elapsed.
Further, complainant failed to contend that the time limits should be
tolled for any reason.
In light of the AJ's findings that complainant's claims were subject
to dismissal, she determined there were no material facts in dispute.
Furthermore, even considering complainant's claim on the merits,
the AJ found no evidence that the suspension was issued for any other
reason that those articulated by the agency. Additionally, she found
no evidence that any of complainant's protected bases were factors in
the scrutiny given to complainant's work on April 2, 1996.
On June 10, 1998, the agency issued a final decision that adopted
the AJ's decision. On appeal, complainant contends that the agency
failed to consolidate the instant case with a later complaint filed
when complainant was issued a Letter of Removal. He argues that the
suspension was a factor used to support his Removal in September 1996.
In response, the agency requests that we affirm its final decision.
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. On appeal, complainant
submits documentation that could arguably establish the suspension
was considered when the agency issued him a Notice of Proposed Removal
in September 1996. Despite this documentation, we agree with the AJ
that complainant failed to establish a genuine issue of material fact.
Complainant did not rebut the agency's reasons for the suspension.
On the contrary, his affidavit serves to support the agency's legitimate,
nondiscriminatory reasons for its actions. Finally, 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 national origin, or sex.
As for complainant's second claim, we find the claim should have
been dismissed for failure to state a claim. Complainant failed to
establish how he was harmed with respect to a term, condition or
privilege of employment. We 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 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
4/13/01
Date