01A20828_r
06-24-2002
Francisco V. Espinoza, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Francisco V. Espinoza v. Department of the Navy
01A20828
June 24, 2002
.
Francisco V. Espinoza,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A20828
Agency No. 00-62204-033
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 26, 2001, 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. The agency defined complainant's complaint
as alleging discrimination on the bases of national origin (Hispanic)
and age (D.O.B. 9/4/47) when:
On May 23, 2000, complainant declined to be interviewed for a Heavy
Mobile Equipment Leader (HMEL), WL-5803-10, position because he felt
that if he was selected he would be subject to reprisal.
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. Alternatively, the agency
dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(5),
for alleging a preliminary step to taking a personnel action.
A review of complainant's formal complaint and his statement on appeal
indicate that the agency improperly defined complainant's complaint.
In his formal complaint, complainant claims that he was subjected
to discrimination on the bases of national origin (Hispanic) and age
(D.O.B. 9/4/47) when: on March 28, 2000, he was not selected for the
position of Heavy Mobile Equipment Leader (HMEL), WL-5803-10, which
had six vacancies. Complainant noted that he applied for the HMEL
position and was informed of the scheduled interview a day prior to the
interview. Complainant stated that after the interview, he was informed
by a co-worker that a member of the selection board brought up issues
about his age and time left in Civil Service. Complainant stated that
two persons were selected as a result of the process. After learning
of his non-selection, he contacted the agency's EEO Counselor to inquire
about the reasons for his non-selection. Complainant stated that after he
complained about the selection process, the selections were cancelled.
Complainant explained that another set of interviews for the same
position were scheduled on May 24, 2000. Complainant acknowledged that
he refused the second interview based on the discrimination during the
first interview process and fear of retaliation if he was selected for
the position.
In response to complainant's appeal, the agency noted that due to
procedural errors during the interviews of the first selection board in
March 2000, a second selection board was convened to conduct interviews
during May 2000. The agency stated that the March selection board results
were not relied upon by the agency. The agency claimed that complainant
was non-selected for the HMEL position because of his refusal to attend
the second interview.
Upon review, we find that complainant has shown an injury or harm 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). In the present case, complainant claims that he was improperly
non-selected for the HMEL position on March 28, 2000, on the bases of his
national origin and age. Complainant's claim is sufficient to render
him an aggrieved employee. The agency's argument that complainant was
not selected because of his refusal to attend the second interview goes
to the merits of the complaint. Accordingly, the agency's decision to
dismiss complainant's complaint is REVERSED and the complaint is REMANDED
for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
June 24, 2002
__________________
Date