01A21652_r
12-12-2002
Jose L. Aguirre, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jose L. Aguirre v. Department of the Treasury
01A21652
December 12, 2002
.
Jose L. Aguirre,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21652
Agency Nos. 02-4024, 02-4025M
DECISION
Complainant filed a timely appeal with this Commission from two agency
decisions dated December 17, 2001, dismissing his two complaints of
unlawful 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.
Agency Case No. 02-4024
In his complaint filed under Agency Case No. 02-4024, complainant alleged
that he was subjected to discrimination on the bases of race (Mexican),
national origin (Hispanic), and color (non-White) when: complainant was
suspended for 10 days. The agency dismissed complainant's complaint
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1),
for raising the same issue in a previous complaint. The agency stated
that on August 21, 1999, complainant filed another complaint (Agency Case
No. 99-4318), alleging that he was subjected to discrimination when he was
suspended for 10 days from September 13, 1999, through September 22, 1999.
The agency noted that this complaint was accepted for investigation and
forwarded to the EEOC for a hearing on December 21, 1999. Thus, the
agency dismissed the present complaint for raising the same matter as
pending before or decided by the agency or Commission. Alternatively,
the agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact.
Upon review, we find that the agency properly dismissed Agency
Case No. 02-4024 for raising the same matter that is pending before
or has been decided by the agency or Commission. A review of the
formal complaint in Agency Case No. 02-4024 and the EEO Counselor's
report reveal that complainant is challenging the 10-day suspension he
served in September 1999. The record reveals that on August 21, 1999,
complainant filed Agency Case No. 99-4318, alleging that he was subjected
to discrimination when he was suspended for 10 days from September 13,
1999, through September 22, 1999. The record reveals that this complaint
was accepted for investigation and forwarded to the EEOC's Los Angeles
District Office for a hearing on December 21, 1999.
Agency Case No. 02-4025M
Complainant filed a formal complaint under Agency Case No. 02-4025M, in
which he alleged that he was subjected to discrimination on the bases
of race (Mexican), national origin (Hispanic), and color (non-White)
when: complainant was suspended for 45 days. The agency dismissed
complainant's complaint pursuant to the regulation set forth at 29
C. F.R. � 1614.107(a)(1), for raising the same matter pending before or
decided by the agency or Commission. The agency noted that complainant
previously filed a formal complaint (Agency Case No. 00-4298M) on
August 18, 2000, alleging that he was subjected to discrimination when
he received a 45-day suspension, effective April 5, 2000, through May
19, 2000. The agency claimed that the issue of the 45-day suspension
was raised in an appeal to the Merit Systems Protection Board (MSPB),
and that the agency subsequently dismissed Agency Case No. 00-4298M
for electing to file through the MSPB. The agency noted that the
dismissal was affirmed by the Commission. Thus, the agency dismissed the
present complaint for raising the same matter that was pending before or
previously decided by the agency or Commission. Alternatively, the agency
dismissed complainant's complaint for untimely EEO Counselor contact.
With regard to complainant's claim that he became aware of discrimination
on July 23, 2001, when he received documentation under a FOIA request,
the agency concluded he was aware of the alleged discrimination on March
30, 2000, when he received the notice suspending him for 45 days. Thus,
the agency concluded that complainant's August 6, 2001 counselor contact
was untimely.
The Commission finds that the agency properly dismissed Agency Case
No. 02-4025M for raising the same matter that is pending before or has
been decided by the agency or Commission. In Agency Case No. 02-4025M,
complainant alleged that he was subjected to discrimination when
he received a 45-day suspension effective April 5, 2000. The record
reveals that complainant previously filed Agency Case No. 00-4298M on
August 18, 2000, alleging that he was subjected to discrimination when
he received a 45-day suspension, effective April 5, 2000, through May
19, 2000. The record reveals that the issue of the 45-day suspension
was raised in an appeal to the Merit Systems Protection Board (MSPB),
and that the agency subsequently dismissed Agency Case No. 00-4298M for
electing to file through the MSPB. In Aguirre v. Department of Treasury,
EEOC Appeal No. 01A10368, (August 14, 2001), req. for recons. den.,
EEOC Request No. 05A20030 (December 4, 2001), the Commission affirmed
the agency's dismissal of Case No. 00-4298M. Thus, we find that the
agency properly dismissed the present complaint on the grounds that it
was previously decided by the agency or Commission.
Accordingly, the agency's decisions to dismiss complainant's complaints
are 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
December 12, 2002
__________________
Date