Juan G. Garces, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 27, 1999
01992901 (E.E.O.C. Oct. 27, 1999)

01992901

10-27-1999

Juan G. Garces, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Juan G. Garces v. Department of the Army

01992901

October 27, 1999

Juan G. Garces, )

Appellant, )

)

v. ) Appeal No. 01992901

) Agency No. CATS9805I0140

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. The final agency decision was issued on January

29, 1999. The appeal was postmarked February 25, 1999. Accordingly, the

Commission accepts the appellant's appeal as timely filed, in accordance

with EEOC Order No. 960, as amended.

A review of the record reveals that appellant sought counseling on

April 14, 1998. Appellant filed a formal complaint dated July 28, 1998,

alleging, inter alia, that he was discriminated against on the bases of

race (Mexican), national origin (Mexican) and reprisal (non-selection by

biased manager) when he was not selected for two positions as Machinist

Supervisor, WS-3414-11, announced on March 26, 1998. The agency

dismissed the basis of reprisal. The non-selection allegation was

otherwise accepted for investigation on the bases of race (Mexican)

and National Origin (Mexican). The agency stated that appellant's basis

of reprisal which was based on the alleged bias of an agency official,

did not allege reprisal prohibited under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e et seq. This appeal followed.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.

EEOC Regulation 29 C.F.R. �1614.103(a) provides that individual and

class complaints of employment discrimination and retaliation prohibited

by Title VII (discrimination on the bases of race, color, region,

sex, and national origin,), the ADEA (discrimination on the basis of

age when the aggrieved individual was at least forty years of age),

the Rehabilitation Act (discrimination on the basis of disability),

or the Equal Pay Act (sex based discrimination), shall be processed

in accordance with this part. EEOC Regulation 29 C.F.R. �1614.101(b)

provides that no person shall be subject to retaliation for opposing any

practice made unlawful by Title VII of the Civil Rights Act (Title VII)

(42 U.S.C. �2000e et seq.) the Equal Pay Act (29 U.S.C. �206(d)) or the

Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in any

stage of administrative or judicial proceedings under these statutes.

Moreover, the Commission's Federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Based on a through review of the record, the Commission finds that the

dismissal of the basis of reprisal was proper. The Commission finds that

appellant has clearly stated that the basis of reprisal was predicated

upon the perceived bias of an agency official and his alleged jealousy of

appellant's educational background. Because appellant failed to allege

reprisal for protected EEO activity, it was proper to dismiss reprisal

as a basis in appellant's complaint. Accordingly, the agency's decision

dismissing the basis of reprisal for failure to state a claim is hereby

AFFIRMED for the reasons set forth herein.

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. 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 filed your appeal with the

Commission. 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. 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:

10/27/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations