01a40946
11-29-2005
Richard Salaiz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard Salaiz v. United States Postal Service
01A40946
November 29, 2005
.
Richard Salaiz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40946
Agency No. 4G-780-0121-01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 15, 2003, dismissing his 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of national origin (Hispanic) and sex (male) and reprisal
when he was not interviewed for the Postmaster position in La Feria,
TX. In his complainant, he stated he sent in his application but it was
not received by the agency.
Initially, the agency dismissed the matter for failure to state a claim,
arguing that complainant had not applied for the position. However, in
EEOC Appeal No. 01A13256 (January 23, 2003), the Commission considered
complainant's arguments regarding his application and found that the
complaint stated a claim and remanded the matter. In the meantime,
complainant filed another complaint, Agency No. 4-G-780-0005-01 wherein
he alleged that he was unofficially notified that he was selected for
the La Feria, TX position, but that the position was later cancelled and
re-posted. Agency No. 4-G-780-0005-01 was consolidated with three other
complaints and a hearing was held. Thereafter an EEOC Administrative
Judge (AJ) issued a decision finding no discrimination and specifically
addressed complainant's issues with the La Feria, TX position. The agency
adopted the AJ's decision as its final decision and Complainant appealed
to the Commission. In EEOC Appeal No. 01A34225 (June 22, 2004), the
Commission affirmed the finding of no discrimination. Complainant did
not request reconsideration.
As to the matter at hand, the agency dismissed complainant's complaint
because it was identical to that in �4-G-780-0332-00" (which dealt with a
non-selection in Sebastian, TX). It should be noted that 4-G-780-0332-00
is one of the cases consolidated with 4-G-780-0005-01 for which a hearing
was held. While it is clear that the instant complaint is not identical
to the one identified in the agency's final agency decision, as pointed
out by complainant in his appeal, it is clear that the matters have been
addressed by an EEOC AJ and that the Commission has previously addressed
the issue in Appeal No. 01A34225. As such, the agency's dismissal of the
instant complaint for being identical to another complaint is affirmed.
See 29 C.F.R. � 1614. 107 (a)(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
November 29, 2005
__________________
Date