01a43876
04-08-2005
Paul A. Rodriguez, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Paul A. Rodriguez v. Department of Defense (Defense Commissary Agency)
01A43876
April 8, 2005
.
Paul A. Rodriguez,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A43876
Agency Nos. 01DCM07D01, 02DCM07C003
DECISION
Complainant appeals to the Commission from the agency's decision dated
April 12, 2004, finding no discrimination. In his complaints, dated
March 26, 2001 and July 10, 2002, complainant, a Meat Cutting Worker,
WG-05, alleged discrimination based on race (American Indian/Hispanic),
color (red), national origin (American Indian), and in reprisal for
prior EEO activity when: he was suspended from duty without pay for 14
calendar days effective November 19, 2000, through December 2, 2000;
and, on May 31, 2002, he was harassed by his supervisor regarding a
doctor's appointment. The agency, in its decision, concluded that it
asserted legitimate, nondiscriminatory reasons for its actions, which
complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons for
the alleged actions. The record indicates that complainant was issued the
suspension at issue as a result of an incident occurring on September 24,
2000. Specifically, complainant's supervisor stated that on the day of
the incident, complainant was insubordinate, used inappropriate language,
and left the work area without approved leave.
With regard to the May 31, 2002 incident, the supervisor stated that he
called complainant's house because complainant called in about his going
to his doctor and spoke to a work leader, and not him, and to tell him to
come into work after the doctor's appointment. The Store Director also
stated that complainant's supervisor had to call complainant's home to
ascertain whether or not he was going to be on leave all day because he
was responsible for cleaning the meat market and also whether to schedule
someone else to perform the daily sanitation task in order for the meat
market to open the next day. Despite his arguments, the Commission finds
that complainant failed to show that the agency's reasons were pretext
for discrimination. The record contains a statement from complainant's
coworker, also Hispanic, stating that he had observed complainant's
supervisor treating other employees, including him, differently, not
because of their �race or sex or anything like that,� but because of
�favoritism� (i.e., whether the supervisor �likes a person or not�).
After a review of the record, the Commission finds that complainant failed
to show, by a preponderance of the evidence, that he was discriminated
against on the bases of race, color, national origin, or in reprisal
for prior EEO activity.
The agency's decision finding no discrimination is 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
April 8, 2005
__________________
Date