02990002_r
11-14-2001
Gilbert Torres, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Gilbert Torres v. Department of the Air Force
02990002
November 14, 2001
.
Gilbert Torres,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 02990002
Agency No. AL200990128
DISMISSAL
On September 29, 1998, complainant timely appealed from the agency's
August 26, 1998 Step-3 denial of his grievance. In his grievance,
complainant contends that he should have received a �Superior� rating
as opposed to a �Fully Successful� rating. For requested relief,
complainant sought, in part, an end to the agency's �discrimination,
harassment, disp[arate] treatment, and reprisal actions.� However,
complainant cites no protected basis of discrimination at any stage in
the grievance process. Further, there is no evidence in the record
that complainant has engaged in prior protected activity. For the
first time on appeal complainant contends, through his representative,
that the agency's action was based on his national origin (Hispanic).
Where the record shows that complainant did not raise an issue of
employment discrimination at any step in the grievance procedure, the
appeal must be dismissed. See Mines v. Department of Health and Human
Services, EEOC Request No. 05940663 (May 30, 1993). In the present case,
complainant has raised no cognizable claim of discrimination during the
grievance process. His attempt to allege discrimination on the basis
of national origin after the grievance process concluded cannot save
his claim from dismissal. Accordingly, complainant's appeal is DISMISSED.
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 14, 2001
__________________
Date