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.