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