0120083342
09-05-2008
Ralph D. Arellanes, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Threat Reduction Agency), Agency.
Ralph D. Arellanes,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Threat Reduction Agency),
Agency.
Appeal No. 0120083342
Agency No. DTRA08RDCX001
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 26, 2008 final decision 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.
Complainant worked as a Program Analyst at the agency's facility
in Albuquerque, New Mexico. Complainant claimed that the agency
discriminated against him on the bases of national origin (Hispanic)
and in reprisal for prior protected activity when, on September 5, 2007,
he received a written counseling in regard to his failure to complete
his financial plans in a timely manner. Following an investigation,
complainant did not request a hearing, and the agency issued a final
agency decision (FAD), finding that the agency did not discriminate
against complainant.
The agency issued the memorandum identified in the subject complaint.
However, the agency asserted that the memorandum was placed solely
in the file of complainant's supervisor, and that it was not placed
in complainant's official file.1 The agency stated, and complainant
acknowledged, that complainant did not submit his financial plans in a
timely manner and that this situation had been noted in his 2006, and 2007
evaluations. In response, complainant stated that he had explained to his
superiors that he needed certain information from other sources that was
never available until the end of the year, and he submitted documentation
in support. While it appears that complainant's explanation may be an
appropriate response to the counseling memorandum, he has nevertheless
failed to demonstrate that the agency's action was taken because of his
national origin or in reprisal for his prior EEO activity. 2
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
Accordingly, the agency's decision finding no discrimination is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
_09/05/2008________________
Date
1 In its appeal brief, the agency requested that the complaint be
dismissed; however, because the agency made a determination on the merits,
we decline to do so.
2 Complainant referred to a settlement agreement but did not indicate its
relevance to the instant matter. Complainant is advised that if he seeks
to allege a breach of that agreement, he should follow the requirements
of the Commission's regulation at 29 C.F.R. � 1614.504. The Commission's
regulations are available on our website at: www.eeoc.gov.
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0120083342
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083342