01A10473_r
03-01-2002
David Garcia, Complainant, v. John Ashcroft, Secretary, Department of Justice, Agency.
David Garcia v. Department of Justice
01A10473
March 1, 2002
.
David Garcia,
Complainant,
v.
John Ashcroft,
Secretary,
Department of Justice,
Agency.
Appeal No. 01A10473
Agency No. I97-0125
DECISION
Upon review, the Commission finds that complainant's complaint
fails to state a claim, and is properly dismissed pursuant to 29
C.F.R. �1614.107(a)(1). In a formal EEO complaint dated April 10, 1997,
complainant claimed that he was subjected to harassment in retaliation
for the filing of union grievances when he was not selected for the
position of Supervisory Detention and Deportation Officer, GS-13.
The agency issued a decision dated September 8, 2000, wherein it
determined that complainant was not harassed in retaliation for
filing union grievances when he was not selected for the Supervisory
Detention and Deportation Officer position. The agency determined
that the grievances filed by complainant did not allege that agency
officials were motivated by discriminatory animus in taking any of the
relevant actions. The agency determined that there is no evidence that
complainant engaged in protected activity in order to support a claim of
retaliation under Title VII. The agency also determined that complainant
failed to establish that the agency's proffered reasons for not selecting
him for the Supervisory Detention and Deportation Officer position were
a pretext for retaliation. Upon review of the record, we observe that
complainant did not allege discrimination in the union grievances that
he cites as the basis for his reprisal claim. Therefore, we find that
complainant's claim of reprisal is not based on prior participation in
a protected EEO activity. We find that the instant complaint does not
state a claim. Accordingly, the agency's decision 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
March 1, 2002
__________________
Date