0120062526
05-02-2007
Guadalupe Acuna, Jr., Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Guadalupe Acuna, Jr.,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01200625261
Hearing No. 310-2005-00445X
Agency No. 04-2432
DECISION
Complainant filed the instant appeal from the agency's February 2, 2006
final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �2000e et seq.
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Materials Handler. Complainant filed a complaint alleging that he
was discriminated against on the bases of national origin (Mexican) and in
retaliation for prior protected activity when: (1) on September 19, 2003,
he was denied the opportunity for union representation when management
attempted to present him with a document proposing to suspend complainant
for failure to follow a supervisor's instructions; (2) on March 5, 2004,
he was denied the opportunity for union representation when management
requested that complainant sign an acknowledgment receipt for a proposed
3-day suspension; (3) on April 29, 2004, complainant was verbally told
that he was suspended three days from April 19, 2004, through April 22,
2004; and (4) management is "harder" on complainant while being more
lenient with Black employees.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. The AJ granted the agency's motion for a decision without
a hearing and issued a decision without a hearing on December 13, 2005.
The agency subsequently issued a final order on March 22, 2006, adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
We find that the AJ properly issued a decision without a hearing
in the instant case. Although the AJ dismissed a portion of the
complaint on the grounds that complainant failed to timely contact
an EEO Counselor, the AJ also found no discrimination for the entire
complaint. The Commission finds that complainant was not aggrieved by
allegedly being denied union representation (the agency states that he
was not entitled to union representation). Such a matter concerns an
interpretation and enforcement of the collective bargaining agreement
and is not an EEO matter. Furthermore, complainant has not shown how he
was aggrieved in claim 4. Regarding the suspension, the record shows
that complainant was suspended for not following the directions of
his supervisors. Even if the entire complaint states a claim, we find
(as did the AJ) that complainant failed to show he was discriminated
against by the agency. Complainant has not shown that any agency action
was motivated by discrimination. After a careful review of the record,
we find no reason to disturb the AJ's decision to render a decision
without a hearing and finding that no discrimination occurred.
We therefore AFFIRM the agency's final order finding no discrimination.
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
May 2, 2007
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
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0120062452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036