Guadalupe Acuna, Jr., Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMay 2, 2007
0120062526 (E.E.O.C. May. 2, 2007)

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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2

0120062452

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036