Israel S. Garcia, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 21, 2004
01A45750_r (E.E.O.C. Dec. 21, 2004)

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