01A22878_r
08-23-2002
Jose L. Yzaguirre, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose L. Yzaguirre v. United States Postal Service
01A22878
August 23, 2002
.
Jose L. Yzaguirre,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22878
Agency No. 1-G-784-0026-01
Hearing No. 360-A2-8477
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final action concerning 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.
Complainant claims that he was discriminated against in retaliation for
prior EEO activity when he was charged twelve hours of Leave Without Pay
(LWOP) because he did not provide medical documentation for requested
sick leave on March 3, 2001.
For the reasons described below, the Commission affirms the agency's
final action.
The record reveals that complainant, an electronic technician at the
agency's McAllen, Texas facility, filed a formal EEO complaint with
the agency on May 14, 2001. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ determined that complainant established a prima facie case of
discrimination on the basis of reprisal. The AJ further concluded
that the agency articulated a legitimate, nondiscriminatory reason
for its action. Complainant's supervisor stated that complainant was
late returning from lunch, and when confronted about his tardiness,
complainant claimed that he was sick and was going home. The supervisor
believed that complainant may have been abusing sick leave, so he told
complainant to bring medical documentation upon his return to work;
however, complainant did not bring such medical documentation upon his
return. Therefore, complainant was charged with LWOP. The AJ found
that the agency articulated a legitimate, non-discriminatory reason for
its action. The AJ also found that complainant did not establish that
more likely than not, the agency's articulated reason was a pretext to
mask unlawful retaliation. The agency's final action implemented the
AJ's decision. Complainant makes no new persuasive contentions on appeal.
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 agency's final action,
because the AJ's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
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
August 23, 2002
__________________
Date