)

Equal Employment Opportunity CommissionSep 16, 1999
01972132 (E.E.O.C. Sep. 16, 1999)

01972132

09-16-1999

)


Cynthia Chacon, )

Carlos Chacon, )

Appellants, )

)

) Appeal Nos. 01972132

v. ) 01972133

) Agency Nos. DAY-95-AR-845-E

) DAY-95-AR-876-E

Louis Caldera, ) Hearing Nos. 280-97-4018X

Secretary, ) 280-97-4019X

Department of the Army, )

Agency. )

)

DECISION

Appellant Carlos Chacon (appellant #1) timely initiated an appeal from a

final agency decision (FAD) concerning his equal employment opportunity

(EEO) complaint of unlawful employment discrimination, in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq. Appellant #1 alleged he was discriminated against: (1) based on

reprisal (prior EEO activity of his wife, appellant #2), national origin

(Hispanic/Cuban ancestry), and sex (male) when, on March 9, 1995, his

supervisor verbally counseled him regarding his failure to speak and

interact with a co-worker, and (2) based on reprisal for his and his

wife's prior EEO activity, national origin, and sex, when on March 16,

1995, his wife received an exclusion order barring her from the building

where he worked.

Appellant #2 timely initiated an appeal from a FAD concerning her EEO

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. Appellant #2 alleged that she was discriminated

against based on reprisal for her and her husband's (appellant #1's)

prior EEO activity, sex<1> (female), national origin (married to a

Hispanic individual of Cuban ancestry), and age (D.O.B: 12/4/49, when

on March 16, 1995, she received an exclusion order prohibiting her from

the building where

her husband worked. The appeals are accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the FAD's are AFFIRMED.

At the conclusion of their respective investigations, each appellant

requested a hearing before an Equal Employment Opportunity Commission

(EEOC) Administrative Judge (AJ). Following a consolidated hearing on

both complaints, the AJ issued a Recommended Decision (RD), finding no

discrimination. The FADS adopted the AJ's findings of no discrimination.

It is from this decision that appellant now appeals.

The record reveals that during the relevant time, appellant #1 was

employed as a Portugese Translator/Editor, at the agency's Military

Review, U.S. Army Command and General Staff College, Fort Leavenworth,

Kansas. Appellant #2 was employed as a secretary, at the agency's School

for Command Preparation, U. S. Army Command and General Staff College,

Fort Leavenworth, Kansas.

Appellants #1 and #2 were married while working for Military Review

operations. Over the course of time, appellant #2's relationships with

the majority of her co-workers dramatically deteriorated, which resulted

in her transferring to the School for Command Preparation, which is

located in a separate building than Military Review. Several employees

testified of separate yet similar incidents where on more than one

occasion when walking by appellant #2's car she would race her car engine

as if she wanted to hit them. An employee testified that on several

occasions appellant #2, driving at a fast speed swerved toward her.

Several employees testified about many other incidents of a similar nature

that involved appellant #1. Eventually, the agency issued an exclusion

order barring appellant #2 from the Military Review Building (building).

With respect to the appellants' allegations that their constitutional

rights to freedom of speech and assembly, and their due process

rights were violated, the AJ did not address these allegations because

the Commission lacks jurisdiction to address alleged constitutional

violations. Also, the AJ did not address the appellants' allegations

of defamation and slander because they are not within the purview of

the Commission's jurisdiction.

Next, the AJ concluded that appellant #1 did not have standing as an

�aggrieved employee� to raise allegations of discrimination regarding

the exclusion order issued to his wife. Appellant #1 was not �injured in

fact�. He did not suffer a direct harm which affected a term, condition,

or privilege of his employment as a result of this exclusion order.

With respect to appellant #1 being counseled and advised to speak to and

interact with his co-worker who was also a translator, the AJ concluded

that appellant #1 was not an aggrieved employee. The verbal counseling

that appellant #1 received from his supervisor was not accompanied by

concrete action, and was not a direct and personal deprivation sufficient

to render him aggrieved.

Concerning appellant #2, the AJ determined that she failed to establish

a prima facie case of national origin and age discrimination. Assuming,

arguendo, that she established a prima facie case of age and national

origin discrimination, the AJ found that she failed to establish that the

agency's articulated legitimate non-discriminatory reason for issuing

the exclusion order was pretextual. The exclusion order prohibiting

appellant #2 from the building was issued because the Military Review

employees perceived her to be a threatening, intimidating, and disruptive

presence when she visited Military Review, and requested that she be

precluded from visiting the Building. Appellant #2 failed to establish

that the agency's articulated reason was a pretext for discrimination.

Regarding whether appellant #2 was discriminated against based on

her husband's prior EEO activity, when she was issued the March 16,

1995 exclusion order, the AJ determined that she failed to establish a

prima facie case of reprisal. Also, the AJ determined that she failed

to establish a prima facie case of reprisal with respect to her prior

EEO activity. Assuming, arguendo, that appellant #2 established a prima

facie case of reprisal on both allegations, the AJ found that she failed

to establish that the agency's articulated legitimate non-discriminatory

reason for issuing the exclusion order was a pretext. The exclusion

order was issued to provide the Military Review employees with a safe

work environment.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that appellants failed to

present evidence that any of the agency's actions were in retaliation

for their prior EEO activity or were motivated by discriminatory animus

toward their national origin, sex and age. We discern no basis to

disturb the AJ's findings of no discrimination which were based on a

detailed assessment of the record and the credibility of the witnesses.

See Esquer v. United States Postal Service, EEOC Request No. 05950096

(September 6, 1996); Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987);

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). Therefore, after

a careful review of the record, including appellant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

9/16/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 Appellant #2 withdrew sex as a basis

for discrimination at the Equal Employment Opportunity Commission

(EEOC) hearing.