Eugene Evans, Appellant,v.Louis Caldera, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 30, 1999
01970864 (E.E.O.C. Apr. 30, 1999)

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