01a05217
09-05-2000
Fortino P. Chavez, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Fortino P. Chavez v. Department of Commerce
01A05217
September 5, 2000
.
Fortino P. Chavez,
Complainant,
v.
William M. Daley,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A05217
Agency No. 00-63-00469D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission.<1> The
MOU was entered into in order to process complaints arising from the
2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
The Commission's Washington Field Office dismissed the instant complaint
for failure to state a claim. In his complaint, complainant alleged harm
on the bases of race (�Hispanic (political)�), national origin (United
States), color (brown), age (58), and disability (perceived), when
his application for employment was not considered. In its dismissal,
the Field Office explained that the agency made no pre-employment
inquiries concerning disability, and that complainant failed to show any
discriminatory motive in the agency's failure to consider his application.
The Field Office noted that similarly situated applicants who were
considered for positions also were Hispanic.
On appeal, complainant argues that he took the test for employment, and
was told that he would be contacted with the results. When he received
no further contact, complainant called the agency, but no one would
tell him the status of his application. He was told, however, that all
supervisor positions were filled during the prior week. Complainant also
refers to his eligibility for veteran's preference at length.
EEOC Regulations allow complaints to be dismissed for failure to state
a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) . To state a claim,
complainant must allege harm to a term, condition, or privilege of her
employment on the basis of race, color, religion, sex, national origin,
age, or disabling condition. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
To the extent that complainant is alleging harm from the agency's failure
to provide a veteran's preference, he has failed to state a claim.
The Commission has held that veteran's preference is not an enumerated
basis for filing an EEO complaint, and that complaints concerning
veteran's preference are not within the purview of the EEO process. See
e.g. Glenn v. Department of Veterans Affairs, EEOC Request No. 05910927
(February 21, 1992). The Commission has no authority to enforce the laws
providing assistance to veterans.
Otherwise, complainant's claim that his application was not considered
because of his race, national origin, color, age, and disability, states
a claim. The Field Office's determination that complainant has failed
to show a discriminatory motive improperly addresses the merits in a
procedural dismissal. Such findings, if warranted by the evidence,
should occur after an investigation is conducted.
CONCLUSION
The Field Office's dismissal of the portion of the complaint alleging
that complainant was not granted a veteran's preference is AFFIRMED.
The Field Office's dismissal of the portion of the complaint alleging that
the agency failed to consider his application of employment is REVERSED
and we REMAND this claim to the Field Office for further processing
in accordance with this decision, the Memorandum of Understanding,
and applicable regulations.
ORDER
The Washington, D.C. Field Office shall, pursuant to the Memorandum of
Understanding referenced in this decision, conduct settlement negotiations
on the remanded claim or notify complainant that the remanded claim has
been accepted and forward the remanded claim to the agency for further
investigation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
September 5, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.