05990066
05-16-2001
Juan J. Perez, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Juan J. Perez v. Department of the Navy
05990066
May 16, 2001
.
Juan J. Perez,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05990066
Appeal No. 01965831
Agency No. 94-57012-024
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Juan
J. Perez v. Department of the Navy, EEOC Appeal No. 01965831 (September
4, 1998). EEOC Regulations provide that the Commission may, in its
discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the underlying complaint, complainant contends that he was
discriminated against based on race (Caucasian/Hispanic), national
origin (Mexican), and in reprisal for prior EEO activity, in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., when: (1) the Avionics Class Desk Officer
(ACDO) used unlawful command influence and carried out a reprisal threat
by writing a formal letter to complainant's supervisor to try to coerce
complainant to drop his EEO complaint; (2) the formal letter was forwarded
to complainant's Competency Center Director to be made a part of his
Performance Appraisal Review System record; (3) he was subjected to a
hostile work environment created by the Logistics Management Specialist's
(LMS) insults, use of abusive language toward him, and assignment to
him of demeaning tasks, and was otherwise treated in a disparate manner;
(4) the F-14/A-6 Weapons Systems Manager (WSM) made derogatory comments
directed at complainant every time he passed his work cubicle; (5) the
ACDO showed him a copy of the Navy Times with the headline, "Threat of
Reprisals"; and, (6) the ACDO refused his request to have a witness or
an EEO representative present during their meetings.
Following completion of the agency's investigation, complainant
was forwarded a copy of the report of investigation and was advised
of his right to seek a hearing before an EEOC Administrative Judge.
Complainant chose instead to request that the agency issue an immediate
final decision. The final agency decision (FAD) found that complainant
had not proven discrimination or retaliation by a preponderance of the
evidence, and our prior appellate decision affirmed the FAD.
In his request for reconsideration, complainant contends that the prior
decision incorrectly found that complainant had not prevailed on his
hostile work environment claim. Specifically, complainant identifies
racial remarks which he alleges were repeatedly made in his presence.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. In reaching
this conclusion, we note that the prior decision did not fail to take
account of complainant's evidence, but rather found that the agency's
witnesses disputed complainant's assertions, and that, considering the
evidence as a whole, complainant had not established by a preponderance
of the evidence that the alleged remarks were made. The prior decision
concluded that the actions which were proven to have occurred did not rise
to the level of a hostile work environment in accordance with applicable
standards. See Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993)
(citing Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)).
Accordingly, the decision in EEOC Appeal No. 01965831 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
May 16, 2001
__________________
Date