05a00798
08-16-2000
Bobby D. Gallegos, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Bobby D. Gallegos v. Department of the Army
05A00798
August 16, 2000
.
Bobby D. Gallegos,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05A00798
Appeal No. 01A00312
Agency No. ACBWFO980210070 et al.
Hearing No. 350-99-8042X et al.
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Bobby
D. Gallegos v. Army, EEOC Appeal No. 01A00312 (April 17, 2000).<1>
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting
party demonstrates 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. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
For the reasons set forth herein, complainant's request is denied.
Complainant alleged he was retaliated (prior EEO activity) against when
he was denied training he requested on July 24, 1996; he was given a
performance rating that was less than he believed he deserved in 1997;
and he was issued a written reprimand on May 7, 1998, and a three-day
suspension on July 20, 1998. After all the procedural prerequisites
were met, a hearing was held
before an AJ at which eight (8) witness testified. After the hearing,
the AJ issued a decision finding no discrimination. The AJ found that
the agency articulated legitimate, nondiscriminatory reasons for its
actions, namely:
(a) the complainant was denied the training requested because it was not
directly related to his job and admitted at the hearing that he wanted
the training to enable him to qualify for a different job;
(b) the rating official testified that the complainant was rated at the
level 3 because he did not exceed expectations on more than 24% of his
objectives. Complainant exceeded on 2 objectives, was not rated on 2
objectives, and was rated as �Successful� on the remaining 8 objectives.
The rating official testified that he did not observe any performance that
would have merited an �Exceeds� rating on any of the 8 other objectives;
(c) the complainant was issued a reprimand for his argumentative behavior
at a test site which was disruptive and upsetting to other employees,
and his unprofessional manner in dealing with a fellow employee; and
(d) the complainant was issued a 3-day suspension after he was caught
searching through the in-box of an absent employee who handled sensitive
personnel information which complainant was not authorized to see.
The complainant failed to establish that the agency's reasons for its
actions were pretext for retaliation. The agency issued a final decision
adopting the AJ's decision finding no discrimination and the previous
decision affirmed. On request for reconsideration, no new arguments or
evidence were raised.<2>
In light of the above, and after a review of the complainant's request
for reconsideration, the previous decision, and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission
to deny the request. The decision in EEOC Appeal No. 01A00312
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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 ORDEPARTMENT
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.
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 16, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 In his request for reconsideration, complainant makes a general
statement that the AJ misinterpreted the definition of creating a
disturbance in accordance with army regulations and submits an agency
�Table of Penalties for Various Offenses� (Table 1-1) in support.
Complainant states that although he was involved in an argument at
the test site, he did not create such a �disturbance resulting in an
adverse effect on morale, production, or maintenance or discipline�
as was referenced in complainant's written reprimand by the agency in
response to issue (c). However, complainant has failed to indicate how
this information meets the requirements of a request for reconsideration,
and/or affects the previous decision.