01A42624
07-08-2004
Rodrigo G. Ancheta, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rodrigo G. Ancheta v. United States Postal Service
01A42624
July 8, 2004
.
Rodrigo G. Ancheta,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42624
Agency No. 4F-945-1267-95
Hearing No. 370-96-X2473
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission on March 11, 2004
regarding a March 28, 1997 final agency decision in Agency Case
No. 4F-945-1267-95. The agency notes that complainant filed his
formal complaint on November 6, 1995, alleging that he was subjected to
discrimination on the bases of race and national origin when:
Since April 1995, he has allegedly been subjected to demeaning,
inaccurate comments; monitoring of work and breaks; false statements
on route inspection; inaccurate count of mail; being laughed at and
threatened with being fired;
On August 9, 1995, and exacerbated on August 17, 1995, he was forced
by Supervisor A to carry so much on his back that he seriously injured
himself; and
On August 17, 1995, when he told management of his back pain, Person
B insulted him again.
In a March 28, 1997 agency decision, the agency adopted the January 29,
1997 decision of an EEOC Administrative Judge finding no discrimination.
On June 30, 1997, complainant filed Civil Action No. CIV. S 97-1199
FCD PAN in the United States District Court for the Eastern District of
California regarding the instant complaint. The record discloses that
judgment was entered in CIV. S 97-1199 FCD PAN on January 22, 2001.
The District Court granted the agency's motion for summary judgment
regarding complainant's hostile work environment, disparate treatment,
and disparate impact claims. The District Court also agreed with the
agency that complainant had failed to exhaust his administrative remedies
regarding claims under the Rehabilitation Act, noting that complainant
alleged only race and national origin discrimination in his complaint
filed with the agency.<1> Accordingly, the District Court dismissed
complainant's disability discrimination claims. Complainant did not
prevail in his appeal of CIV. S 97-1199 FCD PAN to the United States
Court of Appeals for the Ninth Circuit (No. 01-15378). On April 16,
2002, complainant's petition to the Ninth Circuit Court for a panel
rehearing and for a rehearing en banc was also denied.
Upon review, the Commission finds complainant's appeal is untimely.
The agency's March 28, 1997 decision informed complainant that he had
30 calendar days to file an appeal with the Commission. Complainant
acknowledges that he received the agency's March 1997 decision on March
31, 1997. Complainant elected to file a civil action and did not file
an appeal with the Commission until March 11, 2004, which is beyond the
30-day time deadline.
Complainant's appeal is hereby DISMISSED.
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 8, 2004
__________________
Date
1There is nothing in the record indicating that
complainant filed a complaint with the agency regarding his disability
claims.