Jose Menchaca, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 16, 2003
05a31275 (E.E.O.C. Oct. 16, 2003)

05a31275

10-16-2003

Jose Menchaca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jose Menchaca v. USPS

05A31275

October 16, 2003

.

Jose Menchaca,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05A31275

Appeal No. 01A24273

Agency No. 4-G-780-0229-00

Hearing No. 360-A1-8182X

DENIAL OF REQUEST FOR RECONSIDERATION

The Complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Jose

Menchaca v. United States Postal Service, EEOC Appeal No. 01A24273

(August 28, 2003). EEOC Regulations provide that the Commission may,

in its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

After a review of the Complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01A24273 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.The agency shall

comply with the Order as set forth below.

ORDER (C0900)

The agency is ordered to take the following remedial action. The agency

shall:

Cease the practice of identifying in letters to station managers the

name and specialty of the doctor to whom an employee is sent for a

fitness for duty examination;

Conduct four hours of EEO training courses to be attended by managers

at the agency's San Antonio Post Office who deal with medical records,

covering an employee's right to medical confidentiality under the

Rehabilitation Act; and

Consider taking disciplinary action against the managers responsible

for the violation of the Rehabilitation Act. The agency shall report

its decision. If the agency decides to take disciplinary action, it

shall identify the action taken. If the agency decides not to take

disciplinary action, it shall set forth the reason(s) for its decision

not to impose discipline; and

Complete all of the above actions within ninety (90) calendar days from

the date on which the decision becomes final.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its General Mail Facility in San Antonio,

Texas, copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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

October 16, 2003

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission, dated , which found that a violation

of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The United States Postal Service, San Antonio, Texas Post Office, supports

and will comply with such Federal law and will not take action against

individuals because they have exercised their rights under law.

The United States Postal Service, San Antonio, Texas Post Office, has been

ordered to cease its practice of identifying to station managers the name

and specialty of a physician to whom an employee is sent on a fitness for

duty examination letter. The United States Postal Service, San Antonio,

Texas Post Office, is also ordered to conduct EEO training for managers

at this facility who are involved with medical records focusing on an

employee's right to medical confidentiality under the Rehabilitation Act.

In addition, the facility was ordered to submit a compliance report to

the Commission verifying the completion of all ordered corrective action.

The United States Postal Service, San Antonio, Texas Post Office, will

ensure that officials responsible for personnel decisions and terms and

conditions of employment will abide by the requirements of all Federal

equal employment opportunity laws.

The United States Postal Service, San Antonio, Texas Post Office,, will

not in any manner restrain, interfere, coerce, or retaliate against

any individual who exercises his or her right to oppose practices made

unlawful by, or who participates in proceedings pursuant to, Federal

equal employment opportunity law.

________________________

Date Posted: ________________

Posting Expires: _____________

29 C.F.R. Part 1614