0120092290
10-02-2009
Ricardo Beltran, Jr., Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Ricardo Beltran, Jr.,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120092290
Agency No. USA200800543TB
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 14, 2009, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Mexican), national origin (Mexican),
sex (male), age (34 years at time of incident), and reprisal for prior
protected EEO activity under a statute that was unspecified in the record
when:
1. On July 1, 2008 and on subsequent days, two management officials
("RMOs 1 and 2") tried to pressure complainant into providing evidence
on RMO1's behalf in RMO1's EEO complaint against the agency.
The agency dismissed the claim for failure to state a claim. The agency
initially noted that complainant is under the age of 40 and therefore
is not covered by the ADEA. The agency further found that complainant
was not aggrieved and that the actions of RMOs 1 and 2 were not severe
enough to create a hostile work environment. In his Formal Complaint,
complainant includes a lengthy narrative detailing the behavior of RMOs 1
and 2, but we note that the record does not show, and complainant does not
allege, that either official was in complainant's chain of command or that
they threatened complainant with a tangible employment action. Instead,
complainant merely alleges that when RMO1 realized complainant would not
provide evidence on his behalf, he "became hostile." Complainant does
not specify what form this hostility took but he does state that since the
alleged incidents occurred, RMO2 no longer greets or talks to complainant
around the office.
Following a review of the record, the Commission finds that the complaint
fails to state a claim under the EEOC regulations because complainant
failed to show that he was subjected to unwelcome verbal or physical
conduct involving his protected classes, that the harassment complained of
was based on his statutorily protected classes, and that the harassment
had the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Instead, according to complainant,
any alleged conduct by RMOs 1 and 2 was based on RMO1 trying to get
complainant to provide evidence in support of RMO1's EEO complaint, not
on complainant's race, national origin, or sex. Furthermore, at most,
RMOs 1 and 2 merely shunned complainant, but did nothing more.
Nor has complainant shown he suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 2, 2009
__________________
Date
2
0120092290
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092290