01A23689
07-09-2003
David Flores, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
David Flores v. United States Postal Service
01A23689
July 9, 2003
.
David Flores,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A23689
Agency No. 4G-780-0168-01
Hearing No. 360-A2-8435X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on the
bases of race (White), national origin (Hispanic), sex (male), and in
reprisal for prior EEO activity in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and on the basis of disability (stress) in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., when:
his request for annual leave for the period November 20-24, 2000,
was initially approved and then subsequently disapproved;
on or about February 27 and March 12, 2001, he was subjected to route
checks and was not informed of the results; and
when he became ill and needed medical assistance, the agency delayed
providing such assistance.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order. In so
finding, we note that assuming arguendo complainant is an individual
with a disability, the Administrative Judge's ultimate finding, that
unlawful employment discrimination on any alleged basis was not proven
by a preponderance of the evidence, is supported by the record.<1>
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
July 9, 2003
__________________
Date
1 We note that on appeal, complainant alleged, through his attorney,
that the Administrative Judge failed to dispose of the retaliation claim.
On the contrary, we find that the Administrative Judge properly set forth
the requirements for establishing a prima facie case of discrimination
based on reprisal. See AJ Decision at 365. Further, the Administrative
Judge properly addressed all bases of discrimination (inclusive of
discrimination based on reprisal) when he stated �It is my decision that
the evidence comprising the record in this case is insufficient to support
a finding by me that the agency discriminated against the complainant
in regard to any of the particulars alleged.� AJ Decision, at 378.