01986084_r
10-05-1999
Estate of Frank Garcia, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Estate of Frank Garcia, )
Appellant, )
)
v. ) Appeal No. 01986084
) Agency No. FO9803I0290
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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, as amended, 29 U.S.C. �621 et seq. The final agency decision
was issued on June 29, 1998. The appeal was postmarked August 3, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that it states the same claim as that pending
before or that has been decided by the agency or the Commission.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on February 23, 1998. On June 23, 1998, appellant filed a formal EEO
complaint wherein he alleged that he had been discriminated against on
the bases of his age (64) and race (Hispanic) when:
1. He was denied a promotion to a GS-4 position.
2. He was not given a chance to advance by the Captain, who allegedly
stated that he hated Mexicans.
The record reveals that appellant alleged that he had been promised a
promotion to a GS-4 position. Appellant stated that the Director of
Public Safety decided not to fill the position. According to appellant,
he became aware on January 9, 1998, after he retired, that the Directorate
of Public Safety hired a white male for that position.
The record indicates that appellant filed a prior complaint, Agency
No. FO9707H0400. In that complaint, appellant raised the following
issues:
1. Captain [ ] made remarks such as, �No wetback should be promoted.�
�You're kind of old, you need to retire.�
2. When asked about the status of appellant's promotion, Captain [ ]
responded that he was not going to do anything about getting it done
and if appellant wanted it done, to do it himself.
3. Captain [ ] stated: �The only way you'll get promoted by seeing them
(the union/IG) is because you're a stupid Mexican, not because
you deserve it.�
4. Appellant had been performing higher level duties thinking he would
be promoted at a later date.
5. After a meeting with Major [ ], Captain [ ] told appellant that
he is a dumb Mexican trying to work the system and he never thought
he could do the work anyway. The Captain also told him that he would
learn to respect authority one way or the other because as a Mexican,
appellant should not question authority.
6. Appellant received a poor performance appraisal because he would
not assist coworkers in the office.
7. The Captain stopped talking to appellant and made remarks about him
that he was certain to overhear such as: �Don't ask [appellant] about how
to do something, he doesn't know how to do his job.� �He's a troublemaker
and you should know better than to hang around his kind of people.�
On October 10, 1997, the agency issued a decision on Agency Number
FO9707H0400, accepting allegations 2, 4, and 6, and dismissing allegations
1, 3, 5, and 7 on the grounds that appellant failed to raise them with
an EEO Counselor. On appeal, the Commission reversed the agency's
dismissal and remanded allegations 1, 3, 5, and 7 to the agency for
further processing. Frank Garcia v. Department of the Army, EEOC Appeal
No. 01981229 (May 4, 1999).
In its final decision with regard to the instant complaint, the agency
dismissed the complaint on the grounds that it states the same claim
that is pending before or that has been decided by the agency or the
Commission. According to the agency, allegation 1 was accepted for
investigation in Agency No. FO9707H0400. The agency dismissed allegation
2 on the grounds that this matter was raised in that complaint as well,
which was then pending before the Commission.
On appeal, appellant's representative notes that appellant died shortly
after he filed his formal complaint. The representative reiterates
appellant's contentions that he was assigned higher level duties without
receiving the corresponding promotion.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
It has long been established that �identical� does not mean �similar.�
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The agency dismissed the instant complaint on the grounds that the
complaint stated the same claims as raised in Agency No. FO9707H0400.
Both the previous complaint and the instant complaint focus on the denial
of a promotion to a GS-4 position for appellant. The record indicates
that the non-promotions in each complaint reflect the same event.
The record further indicates that both complaints involve the Captain
directing ethnic slurs toward appellant. We find that the instant
complaint states the same claim as the prior complaint. Accordingly, the
agency's dismissal of appellant's complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
October 5, 1999
DATE
Carlton
M. Hadden,
Acting
Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed.