01971820
03-03-1999
Glenn Madison, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Glenn Madison, )
Appellant, )
) Appeal No. 01971820
v. ) Agency No. 95-0412
) Hearing No. 340-95-3771X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (African-American), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. Appellant alleges he was discriminated against
when the agency failed to call him back to work after a scheduled lay
off from August 26 through September 5, 1994. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant, a temporary Carpenter at the agency's
Purchase and Hire Section of the Engineering Service at the Sepulveda,
California Medical Center, filed a formal EEO complaint with the agency on
October 12, 1994, alleging that the agency had discriminated against him
as referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD) finding no discrimination.
The AJ concluded that while appellant established a prima facie case
of discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its decision to terminate appellant's temporary assignment
in advance of the projected end date, namely, that appellant's job
performance was not satisfactory because the quantity of work performed
was unacceptable compared to that expected of a journeyman carpenter.
The AJ then concluded that appellant did not establish that more
likely than not, the agency's articulated reasons were a pretext to
mask unlawful discrimination. In reaching this conclusion, and while
crediting the testimony and statements of a number of co-workers that
the quality of appellant's work was acceptable, the AJ also credited
appellant's supervisor, who observed the quantity of appellant's work
to be unacceptable, even after verbally counseling him about improving
the pace of his work. The AJ noted that the supervisor's observations
were corroborated by a project engineer, who observed appellant's work
to be unacceptably slow. Additionally, the AJ noted that the supervisor
could only recommend ending appellant's temporary assignment, and both the
Assistant Chief Engineer and Chief Engineer reviewed the written reports
completed by the supervisor, and concurred with the recommendation to
terminate appellant's temporary assignment �for cause.� Moreover,
the AJ also credited the testimony of one co-worker who indicated
that while the quality of appellant's work was good, it was appellant's
unwillingness to change how he performed the job, and the pace at which he
completed various assignments, which caused him to fall into disfavor with
management. Finally, the AJ noted that while appellant alleged that his
supervisor was biased in the allocation of job assignments and accused his
supervisor of calling him �boy� on two occasions, the supervisor denied
making such statements in his affidavit, and no witnesses corroborated
appellant's allegation of racial bias in this regard. The agency's FAD
adopted the AJ's RD. On appeal, appellant restates arguments previously
made at the hearing. The agency requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to
present evidence that more likely than not, the agency's actions
were motivated by racial animus. We note that the Assistant Chief
Engineer issued appellant's supervisor written counseling in May of
1994, concerning an incident of racial slurs the supervisor overheard,
but failed to take action on, some fourteen months prior. However,
this isolated incident, without more, is insufficient to establish
racial animus by the supervisor, when he merely overheard the remarks,
and where he recommended, but did not have sole discretion in, the
decision to end appellant's temporary assignment. We also note that
a four to six weeks delay in processing the termination paperwork for
appellant under these facts is not indicative of racial bias. Finally,
we note that the Commission will generally not disturb an AJ's credibility
determinations where such determinations are made based on the credibility
of the witnesses. See Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990); Anderson v. Bessemer City, 470
U.S. 564, 575 (1985). Therefore, after a careful review of the record,
including appellant's contentions on appeal, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations