0520090570
12-09-2009
Fermin Salas, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
Fermin Salas,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Request No. 0520090570
Appeal No. 0120065120
Agency No. FWS-05-002
DENIAL
Complainant timely requested reconsideration of the decision in Fermin
Salas v. Department of the Interior, EEOC Appeal No. 0120065120 (June
26, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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 29 C.F.R. � 1614.405(b).
On November 1, 2004, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of national origin (Hispanic)
when: (1a) on February 9 and 10, 2004, during two initial meetings,
complainant was subjected to harassment when his supervisor made negative
and threatening comments about his appearance, lack of qualifications,
and not wanting to supervise him; (1b) on approximately March 5, 2004,
complainant's supervisor became very angry, his face turned red, and his
body shook, he made very negative statements concerning complainant's
training, qualifications, and work experience, and also threatened to
fire him; (1c) from approximately April 26 to May 26, 2004, complainant
was subjected to derogatory comments when two training officers repeatedly
stated that he lied on his application, threatened not to pass him during
training, and questioned his qualifications, and the training officers
told complainant that he was incompetent and that he did not fit in with
the Fish and Wildlife Service's law enforcement program.1
Complainant further alleged that he was subjected to harassment on the
bases of national origin (Hispanic) and in reprisal for prior EEO activity
under Title VII when: (2a) on May 27, 2004, complainant informed his
supervisor that he was meeting with an EEO counselor due to ongoing
issues to which he had been subjected and the supervisor threatened to
terminate complainant if he met with an EEO counselor; (2b) on July 1,
2004, complainant's supervisor told him that he was nothing but a nice
Park Ranger, said he was too friendly, and he was going to Oklahoma for
training so he could be taught how to be aggressive and then threatened
to terminate him if he did not attend; (2c) on July 6, 2004, while he
was on sick leave and without any explanation, complainant's supervisor
contacted his attorney and demanded that he return his badges, commission,
and all law enforcement equipment immediately; and (2d) on July 7, 2004,
complainant's supervisor contacted his physician/counselor and asked
questions about his counseling sessions and accused him of breaching
national security.
On February 2, 2005, complainant amended his complaint to further allege
that the agency subjected him to harassment of the bases of national
origin and in reprisal for prior EEO activity when: (3) on or about
December 17, 2004, complainant received a letter from his supervisor
stating that his doctor submitted documentation to the FWS reflecting
that complainant could return to work if complainant was assigned to
a different worksite and/or under a different supervisor, and the FWS
denied complainant's requested accommodation, returning him to the same
position and supervisor he had, prior to his departure on sick leave
in July 2004; (4) on or about January 7, 2005, complainant received a
letter from his supervisor regarding leave, stating that complainant had
missed the deadline for scheduling "use or lose" annual leave, and his
request for 72 hours of leave from January 10 through January 21, 2005,
would be approved, but deducted from the 240 hours he carried over from
the prior leave year; and (5) on or about January 19, 2005, complainant
received a letter from his supervisor stating that he was proposing an
adverse action (termination) against complainant based on his failure to
meet the conditions of employment, allegedly resulting in complainant's
forced resignation, which became effective on February 11, 2005.
The agency issued a final agency decision (FAD) finding no discrimination.
The FAD found that complainant failed to prove a prima facie case
of harassment or disparate treatment for his claims. The Commission
affirmed the finding of no discrimination. The Commission also found that
complainant failed to prove that he was denied a reasonable accommodation.
The Commission determined that complainant failed to identify a vacant
funded position into which he was qualified to be reassigned or show
that job patterns existed so that such a vacancy was likely during the
relevant time period.
In his request for reconsideration, complainant simply asks that his case
be reconsidered. Complainant does not raise any arguments in support of
his request. The agency responds by requesting that we deny complainant's
request because he has not met the requirements for reconsideration.
After reconsidering 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 Commission finds that complainant failed to show
that the appellate decision involved a clearly erroneous interpretation
of material fact or law; or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
agency. Accordingly, the decision in EEOC Appeal No. 0120065120 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 9, 2009
Date
1 In a letter dated December 23, 2004, the agency initially accepted
claims 2a-2d, but dismissed claims 1a-1c on the basis that they were
initiated by untimely EEO Counselor contact. However, the agency
investigated claims 1a-1c and rescinded its dismissal of claims 1a-1c
in its final decision.
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0520090570
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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