01972657
11-19-1998
Angelo Moore, Appellant, v. Togo D. West, Jr., Secretary Department of Veteran Affairs Agency.
Angelo Moore v. Department of Veteran Affairs
01972657
November 19, 1998
Angelo Moore, )
Appellant, )
) Appeal No. 01972657
v. ) Agency No. 96-0065
Togo D. West, Jr., Secretary ) Hearing No. 110-96-8230X
Department of Veteran Affairs )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Final Agency Decision (FAD) was issued
on January 2, 1997 and received on January 13, 1997. The appeal was
postmarked February 7, 1997. Accordingly, the appeal is timely<1>, (See
29 C.F.R. �� 1614.402(a)and 1614.604(b)), and is accepted in accordance
with EEOC Order 960.001, as amended.
ISSUE PRESENTED
The issue presented is whether appellant has established by a
preponderance of the evidence that the agency discriminated against
him on the basis of race (Black) when he was denied the opportunity to
perform sleep studies.
PROCEDURAL HISTORY
On September 22, 1995, appellant filed a formal EEO complaint alleging
discrimination on the basis of race when he was deprived the opportunity
to perform sleep studies. Appellant further alleged that he was forced to
submit to being trained by a lesser qualified Respiratory Therapist and
that the lesser qualified Respiratory Therapist received certain benefits
by virtue of his assignments to perform sleep studies. The complaint
of discrimination was investigated and a report was issued on April
5, 1996. Thereafter, pursuant to appellant's timely request, a hearing
was conducted before an administrative judge (AJ) on October 9, 1996.
The appellant called four witnesses to testify, as well as himself, all
of whom are black and all of whom were co-workers of his at the time
of the alleged discrimination. The agency called appellant's first
and second-line supervisors. Thereafter, on October 9, 1996, the AJ
issued his bench decision and recommended a finding of discrimination
on the basis of race. On January 2, 1996, the agency issued its final
decision and rejected the AJ's recommendation. It is from that decision
that appellant now appeals.
BACKGROUND
The following facts are not in dispute unless otherwise specified:
The record reflects that appellant was hired as a Temporary Respiratory
Therapist with the agency in June, 1994. At that time, appellant was
already a trained Respiratory Therapist (RT). Appellant worked the night
shift along with between two and five other Respiratory Therapists, all
of whom were black, with the exception of one Respiratory Therapist (C1)
(white/Hispanic). In August, 1994, appellant was converted to a career
conditional appointment.
The agency performed sleep studies which consisted of attaching a
finger probe to the patient's finger which runs to a pulse oximeter.
The pulse oximeter measures the saturation of hemoglobin for oxygen.
The oximeter prints out a measure which the therapist reads and interprets
and takes the requisite action, if necessary, such as providing oxygen
or other corrective measures. The studies are usually set up prior to
the patient falling asleep and the patient is monitored throughout the
night by the Respiratory Therapist, reading the measures periodically.
All black RTs graduated from formal respiratory therapy educational
programs and some of them were certified RTs. C1 had trained to be an
RT on the job and was not certified. During the period in question, C1
performed most of the sleep studies. Appellant's first-line supervisor,
S1, made the sleep study assignments. S1 assigned C1 to be the preceptor
with respect to sleep studies and the other RTs were instructed to
accompany and/or assist C1. Appellant and other RTs accompanied C1 two or
three times per month, over a period of a few months to a year. However,
no RT was ever assigned to conduct an unsupervised sleep study when C1
was present, despite the fact that S1 and the agency concedes that all
RTs were qualified to perform sleep studies.
On a few occasions, S1 directed that C1 not be assigned other work
when he was assigned to perform sleep studies. Yet, on no occasion,
were other RTs similarly relieved of their usual duties when performing
sleep studies. In addition, S1, on at least two occasions, permitted C1
to come in early to set up sleep studies, with the result of receiving
compensatory time and an exemption from mandatory overtime. (FAD pg. 4)
None of the other therapists were given this opportunity.
Some of the RTs lost interest in assisting C1, feeling that they had
learned everything they could from him. In addition, it is undisputed
that on at least two occasions, appellant requested that S1 allow him
to perform sleep studies without supervision and that on both occasions
S1 declined, stating that she felt appellant needed more experience.
Frustration among the night therapists developed which lead to a meeting
in July of 1995. Appellant again raised his frustration about not
doing sleep studies. S1 indicated at this meeting that all therapists
were qualified to do sleep studies, but continued to utilize C1 as the
preceptor during most of the sleep studies. In August, 1995, appellant
initiated his EEO complaint. All other black therapists also filed EEO
complaints.
In September, 1995, management implemented a new policy which removed
S1 from the responsibility of scheduling sleep studies. Instead, the
charge therapist would assign sleep studies. After September, 1995,
appellant was permitted the opportunity to perform sleep studies without
supervision.
At the hearing, the appellant and his witnesses testified concerning
their frustrations in following C1 around as the preceptor for the
sleep studies and their inability to be permitted to perform the sleep
studies unsupervised. Moreover, the appellant and his witnesses all
testified to their perceived feelings that S1 was preferential to C1,
and that his performing sleep studies allowed him favorable treatment
by excusing him from the regular duties performed by therapists.
S1 testified that on-the-job training is all the therapists needed to
perform the sleep studies and that all the RTs were qualified to do the
sleep studies. As a proffered legitimate, non-discriminatory reason for
failing to assign appellant sleep studies, S1 testified that appellant
had never expressed any interest to her in performing sleep studies.
The AJ found that S1's testimony directly contradicted her testimony in
her affidavit where she stated that appellant had expressed interest in
performing sleep studies. However, the agency disputes that a
contradiction exists.
ANALYSIS AND FINDINGS
In its final decision, the agency raises three bases for rejecting the
AJ's finding of discrimination. The agency argues that (1) appellant was
not an aggrieved party as "the preponderance of the evidence indicates
that there was no material advantage associated with the assignment of
sleep studies. . .." (FAD, pg. 5);(2) by September, 1995, "management
instituted changes, which directly remedied the concerns which are
the gravamen of [appellant's] formal complaint" (FAD, pg. 5); and (3)
appellant did not meet his ultimate burden of proving that management
was motivated by considerations of race and/or color. (FAD, pg. 11)
For the reasons set forth below, we REVERSE the agency's dismissal and
find that the agency discriminated against appellant on the basis of
race.
Aggrieved Party
EEOC Regulation 29 C.F.R. s 1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 29
C.F.R. �1614.103. To establish standing as an "aggrieved employee" within
the context of 29 C.F.R. s 1614.103 appellant must allege, first of all,
that he has been injured in fact. Hackett v. McGuire Bros., 445 F.2d
447 (3rd Cir. 1971). Specifically, appellant must allege some direct
harm which affects a term, condition, or privilege of employment. See
Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972).
Our review of the record supports the finding that appellant was in fact
aggrieved. Appellant alleged without contradiction that he was deprived
of the opportunity to perform sleep studies, a duty considered to be a
part of his job description and which he was qualified to perform. The
agency argues that the assignment of sleep studies did not result in
salary benefits or promotion and accordingly there was no material
advantage associated with the assignment of sleep studies. The agency
further argues that the only advantage associated with the assignment
of sleep studies was "the opportunity to become more proficient in one
of the duties of an RT." (FAD, pg. 5).
Assuming the agency is correct in its assessment of the advantages in
performing sleep studies, we find that the ability to become proficient in
an area of one's job title constitutes a "term, condition, or privilege
of employment." See Morman v. Air Force, EEOC Request No. 01964629
(March 17, 1997).
Moreover, it is undisputed that appellant, on the rare occasion when he
performed sleep studies: (1) did not get the opportunity to receive
compensatory time and to be relieved of his obligation to perform
mandatory overtime; (2) did not have his usual duties reassigned so
that he could work primarily on his sleep studies; and (3) did not
get to supervise others in the sleep studies. Clearly, compensatory
time, mandatory overtime, and supervisory functions constitute terms,
conditions, or privileges of employment. See Trafficante v. Metropolitan
Life Insurance Co., 409 U.S. 205 (1972). Accordingly, we reject the
agency's argument that appellant was not an aggrieved employee.
Mootness
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal
of a complaint, or portions thereof, when the issues there are moot.
To determine whether the issues raised in appellant's complaint are moot,
the fact finder must ascertain whether, (1) it can be said with assurance
that there is no reasonable expectation that the alleged violation will
recur; and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged discrimination. Moden v. USPS, EEOC
No. 01975088 (June 25, 1998); See also County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979).
The agency contends that as of September, 1995, assignments of sleep
studies were no longer made by appellant's first-line supervisor. The
agency argues that this change by management completely remedied the
concerns addressed in appellant's formal complaint.
We disagree with the agency's reasoning. First, the record shows that
appellant continues to be supervised by the same first-line supervisor
who allegedly engaged in racial discrimination. Moreover, the record
indicates that in 1996, appellant's first line supervisor, did, in fact,
assign one sleep study which was assigned to C1 (Hearing Transcript,
pg. 55). In addition to the deprivation of sleep studies, appellant
also alleges that he was deprived the ability to receive compensatory
time and was required to perform mandatory overtime.
Management's change in their policy does not remedy appellant's loss of
compensatory time or overtime. Moreover, the change in policy does not
reasonably ensure that the alleged discrimination will not recur, since
management has not provided sensitivity training to the supervisor who
allegedly discriminated against appellant. Accordingly, the Commission
finds that the effects of the discrimination have not been completely
eradicated and it cannot be said with assurance that there is no
reasonable expectation that the alleged violation will recur.
Race Discrimination
Appellant's complaint constitutes a claim of race discrimination which
is properly analyzed under the three-part test delineated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253-56 (1981). Under McDonnell Douglas,
a complainant must first make out a prima facie case of discrimination.
This prima facie showing establishes a presumption of discriminatory
motive which the respondent may rebut by articulating a legitimate
non-discriminatory reason for its action. The complainant may still
prevail by showing that the alleged non-discriminatory explanation is in
fact pretext to hide discrimination. St. Mary's Honor Center v. Hicks,
113 S.Ct. 2742 (1993); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248 (1981). In order to establish that the agency's articulated
reason is pretextual, appellant must either show that a discriminatory
reason more likely motivated the agency or that the agency's proffered
explanation is unworthy of credence. Burdine, 450 U.S. at 253; See also,
Mihalakelis v. Justice, EEOC Appeal No. 01944792 (March 7, 1996).
The parties concede that appellant has presented a prima facie case
of discrimination and that the agency has proffered a legitimate,
non-discriminatory explanation for its decision in assigning C1 most of
the sleep studies. Accordingly, the sole issue presented herein deals
with the third part of the McDonnell Douglas Corp. three-part analysis.
The agency contends: (1) that appellant has not established pretext; and
(2) assuming that appellant had shown pretext, that appellant has failed
in his burden to show that management was motivated by considerations
of race and/or color. In support of its argument, the agency cites
St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).
We find that based upon the entire record, the AJ reasonably concluded
that pretext was established and that the basis for the employment action
was more likely based upon race.
Pretext
The agency contends (based almost exclusively on the testimony of S1)
that C1 was assigned most of the sleep studies because: (1) In 1993,
C1 attended a week-long seminar relating to sleep studies; (2) C1 had
expressed great interest in sleep studies; and (3) C1 had impressed
management with his willingness to volunteer to come in early to set up
sleep studies.
The AJ found pretext because: (1) S1's testimony was not credible; and
(2) the undisputed facts support a finding of discrimination.
Inconsistent Statements
The AJ did not find S1's testimony credible primarily because of an
inconsistency in her testimony with respect to whether or not appellant
expressed an interest in performing sleep studies. The AJ noted that
S1 testified in her affidavit that appellant did, in fact, expressed an
interest in performing sleep studies. The affidavit states as follows:
Q81: Did there ever come a time when [appellant] expressed to you,
expressed interest in being trained in sleep studies?
A. Yes sir.
Q82: And do you have any feel for approximately when this began?
A. No. I'd have to go back and look because that's when I started doing
more assigning of the individuals to go with [C1]. [Appellant] has done
very well. He has caught on very good. He, naturally, like everybody,
made a couple of mistakes in the beginning, but he has done better than
the rest of the people on the night shift, I would say. I would say he
was probably the leading person with [C1].
At the hearing before the AJ however, S1 testified as follows:
Q: How many times has [appellant] come to you and expressed interest in
doing sleep studies?
A: None.
Q: How many times has [appellant] come to you and requested training in
sleep studies?
A: None.
(Hearing transcript, pg. 62)
On cross-examination, appellant referred S1 to her affidavit where she
stated that appellant did show interest in performing sleep studies. S1,
responded and stated that she did not remember appellant ever showing an
interest in sleep studies (See Hearing transcript, pg. 67-68). The agency
argues in its FAD that S1's statement is not inconsistent because her
affidavit testimony was likely referring to a period of time after the
EEO complaint had been filed. We find it unreasonable to interpret the
affidavit testimony in such a manner, especially since S1 was referred
directly to her prior testimony and given ample opportunity to explain
her inconsistency at the hearing, but failed to do so.
Moreover, S1 stated that another reason for assigning C1 most of the
sleep studies was because he had completed formal training. Yet, she
also testified that only on-the-job training was necessary to perform the
sleep studies. Since on-the-job training was the only pre-requisite
to becoming proficient in sleep studies and it is undisputed that
appellant was qualified to perform sleep studies, we find that the
one-time attendance by C1 of a training seminar to be insignificant.
Accordingly, we find S1's testimony on this issue disingenuous.
In addition to the inconsistency in S1's testimony, the appellant
testified that he expressed an interest in performing sleep studies on
many occasions. The AJ found the appellant to be an "earnest, forthright
individual of a sensible nature, and it makes no sense that he would
complain about not being allowed to do sleep studies when he had expressed
no interest in doing sleep studies." After a
careful review of the record, we find no inconsistencies in appellant's
testimony and have no reason to question the AJ's assessment of the
appellant's credibility.
Accordingly, we agree with the AJ's assessment of the testimony and note
that the credibility determinations of the AJ are entitled to deference
due to the AJ's first-hand knowledge, through personal observation, of the
demeanor and conduct of the witnesses at the hearing. 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.)
Accordingly, based upon the entire record, including information not
specifically set forth herein, we agree with the AJ's finding of pretext.
We find the record supports the finding that contrary to S1's testimony:
(1) appellant expressed an interest in performing sleep studies; and
(2) appellant was qualified to perform sleep studies.<2> Accordingly,
we do not find the articulated non-discriminatory reasons supported by
the record.
Moreover, even had we not found S1's credibility compromised, we would
find it hard to accept the bases given for failing to assign any of the
black therapists sleep studies without supervision. Simply because C1
attended a seminar which discussed topics relevant to sleep studies, does
not make appellant any less qualified or any less deserving to perform
sleep studies. Similarly, the fact that C1 showed more initiative and
interest in performing sleep studies, does not explain why all qualified
and interested therapists were not permitted the opportunity to perform
sleep studies. Accordingly, we affirm the AJ's finding of pretext.
Pretext Plus
The agency argues that assuming pretext was established, the Supreme
Court's ruling in Hicks, requires more than a finding of pretext in
order find discrimination. The agency further argues that appellant
failed to establish that management was motivated by race.
The Commission finds that the agency misunderstands the Supreme Court's
holding in Hicks. The Commission, along with vast majority of the
circuit courts, have interpreted Hicks to mean that evidence sufficient
to discredit an employer's proffered nondiscriminatory reasons for
its actions, taken together with the complainant's prima facie case,
may be sufficient to support a finding of discrimination. See McCoy
v. Secretary of Defense, EEOC Appeal No. 01956826 (1997); Finklea
v. Postmaster General, EEOC Request No. 05940134 (1994)(holding that
Hicks held that once the trier of fact rejects the employer's proffered
reasons, no additional proof is required).
Accordingly, in cases where a showing of pretext is sufficient to prove
discriminatory animus, pretext is all that is required. However, not
only does the record support a finding of pretext sufficient enough
to prove discrimination, the preponderance of the evidence supports a
finding of racially motivated discrimination.
The record shows the following: (1) all Respiratory Therapists were
qualified to perform sleep studies; (2) sleep studies were included in
the therapists' job description; (3) appellant and other black therapists
expressed an interest in performing sleep studies; (4) only one therapist
(the only non-black) was assigned the task of sleep studies; (5) the
performance of sleep studies resulted in preferential treatment<3>;
(6) most witnesses who testified by affidavit and/or at the hearing
felt that S1 displayed preferential treatment toward the only non-black
on the night shift. The facts set forth above, in addition to, finding
the agency's lead witness to be disingenuous, supports the determination
that racial discrimination has occurred.
Accordingly, after a thorough review of the entire record, the Commission
REVERSES the agency's finding of no discrimination and REMANDS this
matter as set forth in the order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall take corrective, curative and preventive action
to ensure that race discrimination does not recur, including but not
limited to providing training to the responsible official(s) at the
Pulmonary Disease Unit, Pulmonary Critical Care Medicine Section, Decatur
Georgia in the law against employment discrimination. Within thirty (30)
calendar days of the date the training is completed, the agency shall
submit to the compliance officer appropriate documentation evidencing
completion of such training.
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G1092)
The agency is ORDERED to post at the Pulmonary Disease Unit, Pulmonary
Critical Care Medicine Section, Decatur Georgia facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 this 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 this 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 this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
Nov 19, 1998
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency erroneously asserts that the appeal was not "filed"
until February 13, 1997, making it untimely. However, since the
appeal was postmarked on February 7, 1997, it is deemed "filed" on that
date. Accordingly, pursuant to EEOC regulations, it was timely filed. See
29 C.F.R. �1614.604(b).
2 The preponderance of the evidence supports the undisputed finding
that appellant received months of on-the-job training and was otherwise
qualified to conduct sleep studies without supervision. Moreover, the
record also supports the undisputed finding that appellant, in fact,
conducted unsupervised sleep studies on rare occasions when C1 was not
working and did so in a satisfactory manner.
3 C1 had been permitted to earn compensatory time, perform supervisory
duties and be relieved of other responsibilities when he performed sleep
studies.