William Pledger, Jr., Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 31, 1999
01971939 (E.E.O.C. Aug. 31, 1999)

01971939

08-31-1999

William Pledger, Jr., Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


William Pledger, Jr., )

Appellant, )

) Appeal No. 01971939

v. ) Agency No. 96-0059

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of race (Black), and reprisal (prior EEO activity), 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 on June

13, 1995, when his supervisor used profanity while speaking to him and

when he received an unfair rating on his 1995 performance appraisal.

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was employed

as the Supervisor of the Patients Assistance Program. Appellant alleged

that he was harassed when his supervisor (S1) stated in front of him and

a summer employee �I'm not really that bad of a son-of-a-bitch to work

for, am I, Bill?� Appellant maintained that S1 repeated this statement

several times and then began to discuss appellant's performance appraisal

in front of the summer employee. Appellant indicated that he asked the

summer employee to leave and S1 continued with his appraisal. Appellant

indicated that he received a �Highly Successful� performance appraisal

but felt he deserved an �Outstanding�. Believing he was a victim of

discrimination, appellant sought EEO counseling and, subsequently, filed

a complaint on August 24, 1995. At the conclusion of the investigation,

appellant requested that the agency issue a FAD.

The FAD concluded that appellant failed to establish a prima facie case

of race and reprisal discrimination because he presented no evidence

that similarly situated individuals not in his protected classes were

treated differently under similar circumstances or that the supervisor

that modified and then approved appellant's appraisal was aware of his

prior EEO activity. The FAD also found that appellant had failed to

state a claim of harassment. The FAD found that although S1 admitted

to making the statement, the conduct was not sufficiently severe or

pervasive to alter the conditions of employment or to create an abusive

environment. The FAD found that an isolated remark or incident, unless

egregious, is not sufficient to create a hostile work environment.

On appeal, appellant contends that the agency failed to consider his

self appraisal when they prepared his performance appraisal. The agency

requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973), the Commission agrees with the agency that appellant

failed to state a claim of harassment. In reaching this conclusion,

we note that harassment is actionable only if, the harassment to which

the appellant has been subjected was sufficiently severe or pervasive to

alter the conditions of the appellant's employment. Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (March 13, 1997). The Commission

finds that the statements made were isolated incidents that did not alter

the terms or conditions of appellant's employment. Thus, appellant's

claim of harassment is dismissed pursuant to 29 C.F.R. � 1614.107(a).

The Commission also agrees that appellant failed to establish a prima

facie case of race and reprisal discrimination with regard to his

performance appraisal. In so finding, we note that the record shows

that the 1995 performance appraisal of appellant and six or seven other

employees of different races had to be modified by S2, (second line

supervisor), because personnel officials discovered a technical error.

In each case, the performance rating was modified so that the employee

could maintain the same overall rating initially given. Appellant was

initially given an overall rating of �Highly Successful� so S2 raised a

critical element to exceptional while arbitrarily reducing a non-critical

element to fully successful, thereby enabling appellant to obtain an

overall rating of �Highly Successful�. Further, the record revealed that

it is within management's power to ask for and receive self appraisals

but that they are not required to use the information when determining

a rating. Additionally, it was not demonstrated in the record that S2

was aware of appellant's prior EEO activity.

Therefore, after a careful review of the record, including appellant's

contentions on appeal, the agency's response, 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:

August 31, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations