01A45750_r
12-21-2004
Israel S. Garcia, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Israel S. Garcia v. Department of the Army
01A45750
December 21, 2004
.
Israel S. Garcia,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A45750
Agency No. ARHOOD02NOV20003
Hearing No. 310-2003-0557X
DECISION
Complainant filed this appeal with the Commission from the July 20,
2004 agency decision, implementing the June 9, 2004 bench decision of
the EEOC Administrative Judge finding no discrimination.
Complainant alleged that he was discriminated against on the bases of his
race/national origin (Hispanic), age (D.O.B. September 19, 1949) and in
reprisal for prior EEO activity when: (1) his office space was relocated;
(2) he was not promoted to GG-14; and (3) when Colonel A commented on
complainant's ability as a staff officer.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race/national origin, age, or reprisal discrimination because he was
unable to show that others not of his protected classes were treated more
favorably than he was or that there was any evidence that any actions
which were taken were taken with the knowledge that complainant had
exercised protected EEO rights.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
promotion panel did not believe the job description provided in the
promotion packet accurately described complainant's position, that
the promotion panel believed that the promotion packet exaggerated
complainant's responsibilities, and that the promotion packet reflected
supervisory levels performed by GS-13s and not GG-14s. The AJ also
found that the selectee was already at the GG-14 level and had technical
expertise that complainant lacked and which the selectee could provide.
The AJ noted that the agency was undergoing a management study and
that as a result, a reorganization occurred. The AJ further noted that
complainant was assigned to a GG-13 position in the Garrison Command.
The AJ also indicated that Colonel A had admonished complainant because
he had failed to complete an assignment and that complainant admitted
that he did not complete the assignment. The AJ found that complainant
failed to establish by a preponderance of the evidence that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record. We note that complainant failed to
present persuasive evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's protected class. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, the agency's decision finding no discrimination 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 21, 2004
__________________
Date