Ricardo Beltran, Jr., Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionOct 2, 2009
0120092290 (E.E.O.C. Oct. 2, 2009)

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