01970864
04-30-1999
Eugene Evans, Appellant, v. Louis Caldera, Secretary, Department of the Navy, Agency.
Eugene Evans, )
Appellant, )
) Appeal No. 01970864
v. ) Agency No. DON-95-67001-N02
) Hearing No. 140-95-8214X
Louis Caldera, )
Secretary, )
Department of the Navy, )
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 bases of race (Black), color (light
brown), sex (male), 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 when, on
October 19, 1994, he was terminated from his position as Clerk-Typist
during his probationary period. 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 Clerk-Typist at the agency's
Purchasing/Contracting Division, Camp Lejeune, NC, facility filed a
formal EEO complaint with the agency on January 18, 1995, 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).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of discrimination on any bases in that he failed to establish that he had
met the reasonable expectations of his employer. Furthermore, appellant
failed to establish that he had been singled out for termination as he
alleged. The AJ also found that appellant failed to establish a prima
facie case of reprisal discrimination in that he failed to establish
that he had participated in prior EEO activity. Specifically, the AJ
found that appellant's allegation that he had previously �spent time�
at the EEO office was not sufficient to establish prior EEO participation.
Assuming arguendo that appellant established an inference of
discrimination, the AJ found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that appellant was terminated from his position because of performance
problems. Specifically, appellant's second line supervisor (Caucasian
female) testified that appellant disappeared from his work site and
had numerous work performance deficiencies. For instance, testimony
from appellant's chain of command included performance problems such
as typographical errors left uncorrected, unauthorized changes made
to documents as well as numerous spelling and formatting problems.
Testimony revealed that although appellant had been counseled, his
performance had not improved. Although appellant alleged that the
second line supervisor had used the term �you people�, the AJ found
that even if the comment was considered a racial remark, one incident
did not support an inference of discrimination. In sum, the AJ found
that appellant had not presented any evidence that the agency's reasons
for its actions were pretext for discrimination.
On October 7, 1996, the agency issued a final decision adopting the
AJ's RD. It is from this decision that appellant now appeals.
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. Appellant has not filed any new
contentions on appeal and has not presented any evidence rebutting
the agency's reasons for its actions. We therefore discern no basis
to disturb the AJ's findings of no discrimination. Therefore, after a
careful review of the record, and arguments and evidence not specifically
discussed in this decision, the Commission AFFIRMS 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 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. 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:
4/30/99
DATE Ronnie Blumenthal, Director
Office of Federal Operations