01A41972_r
06-16-2004
Jose A. Cuadra, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jose A. Cuadra v. Department of the Navy
01A41972
June 16, 2004
.
Jose A. Cuadra,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A41972
Agency No. 02-61331-006
DECISION
Complainant appeals to the Commission from the agency's January 9,
2004 decision finding no discrimination. According to the agency's
decision, complainant alleges discrimination on the bases of national
origin (Puerto Rico) and age (date of birth: November 4, 1951) when
on April 1, 2002, he was reassigned as an Engineer, ND-855-4, at the
Coastal Systems Station Dahlgren Division, Naval Surface Warfare Center,
Panama City, Florida (Activity). The agency, in its decision, concluded
that it asserted a legitimate, nondiscriminatory reason for its actions,
which complainant failed to rebut.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for the reassignment. The Head of Computer Engineering Branch,
complainant's immediate supervisor, stated that the reorganization
involved eliminating the Engineering Department and placing the
Engineers in product line branches to directly support the projects
of those branches. The Head of the Computer Engineering Branch said
that she recommended that complainant be reassigned to R33, which was
a Software Branch because that was where he had last supported direct
projects. The Head of the Computer Engineering Branch noted that,
although complainant viewed himself as a Software Engineer, he did not
have the skill set to be an independent software developer. The Head
of the Computer Engineering Branch reported that R33 Branch would be a
place where complainant could continue in software and grow. The Head
of the Computer Engineering Branch expressed that, although complainant
tried to go into database development, there was not much in that area
at that Activity. The Head of the Computer Engineering Branch confirmed
that software work did not exist in complainant's current branch.
Complainant has failed to show that the agency's reasons are pretext
for discrimination. Complainant has not rebutted the agency's argument
that its actions were without discriminatory motive. We find that
complainant has failed to show, by a preponderance of the evidence, that
he was discriminated against on the bases of national origin or age.
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
June 16, 2004
__________________
Date