05A20795
08-12-2002
Cesar R. Pena, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Cesar R. Pena v. Department of the Army
05A20795
08-12-02
.
Cesar R. Pena,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Request No. 05A20795
Appeal No. 01A20997
Agency No. BOEAFO0010A0940
DENIAL OF REQUEST FOR RECONSIDERATION
Cesar R. Pena (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Cesar R. Pena v. Department of the Army, EEOC Appeal
No. 01A20997 (April 30, 2002). 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).
Complainant filed an EEO complaint claiming that he had been
discriminated against on the bases of sex (male), race (Hispanic),
color (brown), national origin (Peru) and age (48) when he was not
selected for the position of Secretary (Office Automation), GS-0318-06,
with the U.S. Office of Defense Cooperation at the American Embassy in
Montevideo, Uruguay. The complaint was accepted for investigation.
After complainant was issued the report of investigation, he did
not respond to request either a hearing or a final agency decision.
The agency issued a final agency decision.
In its October 22, 2001 decision, the agency found that complainant had
established prima facie cases of race, color, national origin, sex and
age discrimination. It then found that the agency had offered legitimate,
non-discriminatory reasons for its actions which the complainant had
not shown to be pretextual. The agency explained that a selection
panel had been formed to review the applications for the position.
The panel recommended the selectee, who was unanimously thought to
be the best candidate for the position on the basis of her �superb
secretarial/administrative ability,� her professionalism, work ethic
and interpersonal skills. Of all the candidates looked at by the panel,
complainant ranked last. The complainant claimed that the selectee was
hired illegally because she did not have the required work permit for
work in Uruguay, which he did have. The agency pointed out that under
Uruguay law, she could obtain it once she had a valid job offer, and so
she is working legally. The complainant also refused to take part in
the investigation because he claimed that the agency improperly phrased
his complaint, stating that he was not selected for the position of
�Secretary (Office Automation), GS-0318-06,� when his complaint clearly
stated that the position was for �Secretary, GS-6/1.� The agency tried
to explain to complainant that it was the same position to which each
was referring. The agency concluded that the complainant had not shown
their reasons to be pretextual and it closed the complaint with a finding
of no discrimination.
The previous appeal decision affirmed the decision of the agency because
the agency correctly analyzed the case, and there was no evidence
submitted by complainant that would show that his non-selection was
motivated by his race, color, sex, national origin or age. It found
as well that the agency's slight alteration of the description of the
position so that it read �Secretary (Office Automation), GS-0318-06�
instead of �Secretary, GS-6/1� should, at most, have been considered
harmless error, as it did not in any way affect the analysis of the
merits of the complaint, and the record clearly showed that each party
was referring to the same vacancy. In his request for reconsideration,
complainant reiterated his arguments about the improper phrasing of his
complaint, objecting specifically to the addition of the words �Office
Automation.� As complainant's argument was fully considered in the
processing of his initial appeal and found not to affect the merits
of his complaint, we find that he has not satisfied the standards for
meeting a request for reconsideration, and that the outcome of the
previous decision should be affirmed.
After a review of 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. The decision in EEOC
Appeal No. 01A20997 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
_____08-12-02_____________
Date