01a24337_r
11-26-2002
Michael A. DallaRosa, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Michael A. DallaRosa v. Department of Commerce
01A24337
November 26, 2002
.
Michael A. DallaRosa,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A24337
Agency No. 00-54-00760
DECISION
The record indicates that complainant filed an appeal from the agency's
decision dated July 3, 2002, finding no discrimination. In his
complaint, complainant, a former Special Agent, GS-1811-12, alleged
discrimination based on race (White) and sex (male) when on March 1,
2000, his request for transfer from Puerto Rico to Florida was denied.
Complainant indicated that his transfer request was due to his marital
difficulties because his wife resided in Florida. The record indicates
that complainant resigned from the agency effective March 24, 2000.
The agency, in its decision, concluded that complainant failed to
establish a prima facie case of discrimination since he failed to show
that he was treated less favorably than similarly situated individuals.
The agency also concluded that it asserted legitimate, nondiscriminatory
reasons for it actions, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons for
the denial of complainant's transfer request. Specifically, the agency
indicated that someone was needed in Puerto Rico, and complainant's
transfer to Florida would overstaff that office. The agency also
indicated that when complainant requested the transfer, there were no
openings in the Florida office at complainant's grade level.
The Commission also finds that complainant failed to show that the
agency's reasons were pretext for discrimination. Complainant did not
rebut the agency's arguments that its action was nothing more than a
business decision without discriminatory motive. The Commission finds
that complainant failed to show, by a preponderance of the evidence,
that he was discriminated against on the basis of race or sex.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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
November 26, 2002
__________________
Date