05a21255
01-27-2003
Jose M. Menchaca v. United States Postal Service 05A21255 01-27-03 .Jose M. Menchaca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose M. Menchaca v. United States Postal Service
05A21255
01-27-03
.Jose M. Menchaca,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A21255
Appeal No. 01A01191
DENIAL OF REQUEST FOR RECONSIDERATION
On September 12, 2002, Jose M. Menchaca (hereinafter referred to
as complainant) initiated a timely request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in Jose
M. Menchaca v. John E. Potter, Postmaster General, United States Postal
Service, EEOC Appeal No. 01A01191 (September 5, 2002). EEOC Regulations
provide that the Commission may, in its discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue herein is whether the previous decision properly affirmed the
final agency decision finding that complainant had not been subjected
to disability (post concussion syndrome), and reprisal discrimination.
BACKGROUND
A review of the record reveals that complainant filed a formal EEO
complaint in May 1997, alleging that he was discriminated against on the
bases of his disability (post concussion syndrome), and in reprisal for
prior EEO activity under Title VII and the Rehabilitation Act when he
received a past due letter of indebtedness for $366.54, and an incorrect
W-2 earnings statement showed wages in the amount of $1,146.34 during
1996. The agency, in a decision dated November 8, 1999, implemented
the Administrative Judge's (AJ's) decision which found that complainant
was not subjected to discrimination. On appeal, the previous decision
affirmed the final agency decision, stating that the AJ's issuance of a
decision without a hearing was appropriate, and a preponderance of the
record evidence did not establish that discrimination occurred.
In his request for reconsideration, complainant asserted that he did
not have a fair hearing. Further, complainant made several contentions
concerning his medical condition.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument which tends to establish that at least one of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to be
reconsidered, the request must contain specific information which meets
the requirements of this regulation. For the reasons set forth below,
the Commission denies complainant's request for reconsideration.
A careful review of the record reveals that the AJ correctly determined
that complainant was not subjected to discrimination with regard to the
matters alleged. It is noted that complainant sustained a work-related
injury in August 1991, and was off of work in a leave without pay
status beginning in May 1992, during which time he received workers'
compensation and social security compensation. The AJ noted that the
record showed that the agency erroneously paid complainant continuation
of pay for days on which leave had not been approved, thereby creating
an indebtedness of $366.54. There is no evidence that complainant was
required to pay that sum, however, and, in fact, the agency cleared the
debt in February 1997. With regard to the second issue, the AJ stated
that complainant received $950.00, pursuant to a union merit lump sum
payment, as well as $196.34 as part of an EEO settlement in 1996.
The AJ found no evidence that either action was discriminatory, and
the Commission agrees. While complainant asserted, in his request for
reconsideration, that he did not have an impartial hearing, the previous
decision correctly determined that the AJ's issuance of a decision
without a hearing was appropriate. Specifically, complainant has not
shown that there were material issues of fact in dispute. Further, while
complainant made several contentions regarding his medical condition,
the previous decision assumed that complainant was an individual with
a disability in its analysis. Accordingly, we find that the previous
decision properly affirmed the November 8, 1999 final agency decision.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request does not meet the criteria in 29 C.F.R. � 1614.405(b).
Therefore, it is the decision of the Commission to deny complainant's
request. The decision in EEOC Appeal No. 01A01191 (September 5, 2002)
remains the Commission's final decision. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
_______01-27-03___________________________
Date