01A11664_r
03-07-2002
Pete M. Reyes, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Pete M. Reyes v. Department of the Treasury
01A11664
March 7, 2002
.
Pete M. Reyes,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11664
Agency No. 01-2036
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 20, 2000, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (White), sex (male), and national origin (Hispanic)
when:
Complainant was not rated best qualified and selected for several
positions on April 17, 1997, April 24, 1997, April 28, 1997, and June
30, 1998.
The agency dismissed the April 17, 1997, and April 24, 1997 non-selections
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(2),
for untimely counselor contact. The agency noted that although the
alleged discriminatory incidents occurred in April 1997, complainant
did not initiate EEO Counselor contact until September 15, 2000.
The agency rejected complainant's argument that he did not reasonably
suspect discrimination until August 30, 2000, when he became aware
of a Treasury and Postal Appropriations' Bill. The agency found that
complainant should have suspected that his failure to be selected was a
product of discrimination as early as July of 1999, when a newsletter
from Congressman Skinner's office was issued which discussed the
Treasury/Postal Bill. With regard to the non-selections on April 28,
1997 and June 30, 1998, the agency dismissed these claims pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim. The agency stated that complainant did not apply for
either the April 28, 1997 or June 30, 1998 positions and noted that no
selections were made for either position. Thus, the agency concluded
that complainant failed to state a harm or loss to a term, condition,
or privilege of employment.
On appeal, complainant claims that his September 15, 2000 counselor
contact was timely made in that he did not possess a reasonable
suspicion of discrimination until August 30, 2000. Complainant states
that on August 30, 2000, he learned of a portion of the U.S. House of
Representatives' report entitled �An Assessment of Vulnerabilities
to Corruption and Effectiveness of the Office of Internal Affairs,
U.S. Customs Service.� Complainant states that this report indicated
that individuals of Hispanic background were susceptible to corruption
and thus were denied promotions because of their Hispanic background.
Complainant states that he first suspected discrimination on August 30,
2000 upon learning of this report and claims that his counselor contact
was timely because it occurred within forty-five (45) days of August
30, 2000. Complainant states that his remaining claims should not be
dismissed for failure to state a claim. Complainant states that he did
not apply for the two other positions in his complaint because it was
�obviously futile.� Complainant cites Shackleford v. Deloitte & Touche,
LLP, 190 F.3d 398 (5th Cir. 1999), for he proposition that he was deterred
from applying based on a consistently enforced policy of discrimination.
The record shows that complainant applied for a Senior Customs Inspector
position which the agency closed on April 17, 1997. The agency made a
selection for the Senior Customs Inspector position on January 2, 1998.
Complainant applied for a Supervisory Customs Inspector position which
closed on April 24, 1997. The agency made a selection for the Supervisory
Customs Inspector position on September 16, 1997. The agency posted an
opening for an Intelligence Research Specialist which closed on April 28,
1997, however, the selection register returned with no selection made
on August 4, 1997. The record shows that complainant did not apply for
the Intelligence Research Specialist position. The agency posted another
opening for an Intelligence Research Specialist position which closed on
June 30, 1998, however, the agency made no selection for this position.
Complainant did not apply for the second Intelligence Research Specialist
position.
With respect to the non-selection claims for the Supervisory Customs
Inspector position and the Senior Customs Inspector position, we
find that the agency properly dismissed these claims for untimely
counselor contact. Although a selection was made for the Supervisory
Customs Inspector position in September 1997, and the Senior Customs
Inspector position in January 1998, complainant states that he did
not suspect discrimination until August 2000, when he learned of a
July 1999 Congressional report. In the present case, we find that
complainant reasonably suspected discrimination as early as 1997.
We note that on appeal complainant states that he did not apply for
the Intelligence Specialist position which closed on April 28, 1997,
because it was futile based on the agency's policy of discrimination.
The Commission finds that by arguing that it was futile to apply,
complainant acknowledges that he reasonably suspected discrimination as
early as 1997. Further, we find unpersuasive complainant's claim that the
discovery of a Congressional report triggered a belief of discrimination
with regard to his non-selections. The Commission finds that there is
no connection between the Congressional report which implied that some
Customs officials believed Hispanics are susceptible to corruption and
complainant's non-selection.
With regard to the non-selection for the two remaining positions, we find
that the agency properly dismissed these claims for failure to state a
claim. The record reveals that complainant did not apply for two openings
for the Intelligence Research Specialist position. Complainant states his
non-application was based on his belief that it was futile to apply for
these positions. Generally, a claim of discriminatory non-selection fails
to state a claim when the complainant failed to apply for the position.
See Owen v. Social Security Administration, EEOC Request No. 05950865
(December 11, 1997). A complainant is only aggrieved by such claims
where he proves that the agency discouraged him from applying, or that
the application process was secretive. See Ozinga v. Department of
Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991). In the
present case, complainant admits that he never applied for the position.
He has failed to show that the agency discouraged him from applying, or
otherwise kept him unaware of the opening. Accordingly, his complaint
fails to state a claim.
Accordingly, the agency's decision to dismiss complainant's complaint
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:
March 7, 2002
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date