Fortino P. Chavez, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionSep 5, 2000
01a05217 (E.E.O.C. Sep. 5, 2000)

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.