01980758
08-27-1999
Lonnie Gideon, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Food and Drug Administration Agency.
Lonnie Gideon, )
Appellant, )
) Appeal Nos. 01980441 and 01980758
v. ) Agency Nos. 933-94 and 598-93
Donna E. Shalala, )
Secretary, Department of )
Health and Human Services, )
Food and Drug Administration )
Agency. )
)
)
DECISION
Appellant filed a timely appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (White), sex (male), age (DOB 7/27/40), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. We consolidate the appeals pursuant to
29 C.F.R. � 1614.606 as they are based on the same period of employment
and substantially state the same set of facts. Appellant alleges he was
discriminated against when: (1) he did not receive a formal evaluation and
did not receive an Employee Performance Management System plan (EPMS);
(2) he was forced to sign a form entitled "Condition of Temporary
Employment" (3) he did not receive a bonus award for 1992, and (4)
he was not given a permanent appointment as a Consumer Safety Officer
(CSO). 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 during the relevant time, appellant was
employed as a Consumer Safety Inspector, GS-5, on a temporary appointment
not-to-exceed September 30, 1992, at the agency's Dallas District Office.
His appointment was later extended to September 30, 1993.
At the conclusion of the investigation, appellant requested a hearing but
due to appellant's failure to appear for a prehearing conference and for a
discovery conference, the case was remanded for failure to prosecute. <1>
Consequently, the agency issued a final agency decision determining that
appellant had failed to show discrimination on the basis of race because
there were no non-white consumer safety inspectors hired on a temporary
basis during the time in question. The agency further decided that it
had legitimate non-discriminatory reasons for not formally evaluating
appellant, for requiring him to sign a temporary employment form, and
for hiring two younger females on a permanent basis which he failed to
demonstrate were a pretext for discrimination.
The agency also concluded that appellant failed to establish that
similarly situated individuals not in his protected classes were treated
differently under similar circumstances. That is, a younger female
hired as a temporary employee at the same time as appellant was also
not evaluated and was not considered for awards. We note that the only
other named comparative was under different supervision in a different
office and was thus not similarly situated to appellant.
On appeal, appellant contends that he established pretext when the agency
required him to sign a temporary employment card but not the two younger
females hired at the same time. He stated that this demonstrated that
the terms of temporary employment did not apply to them because both of
them were hired on a permanent basis.
After a careful review of the record in both cases under the analysis
set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
(1983), the Commission agrees with the agency that appellant failed to
establish a prima facie case of race discrimination in either case,
because the only evidence appellant produced to show that race had any
bearing on hiring decisions was an agency publication expressing in
general terms the need to hire more minorities. Appellant otherwise
failed to allege or even prove that anyone of a different race was hired
for the position he occupied.
In addition, the Commission finds that appellant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. In reaching this
conclusion, we note that the permanent appointment of the two female
comparatives was not shown to be discriminatory. One of the comparatives
applied for and was selected for an open vacancy announcement and one was
eligible for reinstatement based on prior federal service. (DOB 11/25/57).
The evidence shows that appellant did not apply for one position even
though he was qualified, and for the other, he did not meet the criteria
for area of consideration. Furthermore, appellant failed to show that
either of these factors was a pretext for discrimination.
We question the credibility of appellant's claims of discrimination in not
being converted to permanent status because he resigned his position long
before his appointment had expired. In resigning, appellant expressed
dismay at the "indignity of unfair labor practices based on ethnic,
sexual, homosexuality, policy of [AIDS] victims protection..." For these
reasons, appellant claimed he was returning to the private sector for
employment.
With respect to appellant's allegations that he was treated less
favorably in not being given an evaluation which also led to his not
being considered for an award, appellant failed to establish that he
was treated differently from any similarly situated employees. He was
treated the same as one of the named comparatives, but worked under a
different supervisor and in a different office from the comparative
who received an evaluation.
He thus failed to establish an inference of discrimination in this
regard. Nevertheless, appellant further failed to show that the agency's
contention that an EPMS plan is optional for temporary employees, was
a pretext for discrimination.
Finally, appellant's complaint that he was required to sign a form
acknowledging the terms of temporary employment is a marginal statement of
a claim in our view. It merely set forth in more detail the parameters
of temporary employment which were addressed in the vacancy announcement
under which appellant applied. In the final analysis, we fail to see
how appellant was aggrieved by having to sign this notice, the effect of
which was no different than the information given to him on other standard
personnel forms he had already received. Even considering that others may
not have been required to sign a similar form did not establish that he
was treated differently in his employment than other temporary employees.
On the contrary, the only other similarly situated employee was treated
the same as appellant in not being evaluated, not being considered for
awards, and in not being eligible for life or health insurance.
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 agency's
final decision.
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:
8/27/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The Administrative
Judge noted in her Remand Order that she spoke
with appellant by phone about her Order, but
appellant would not allow her to finish, used
profanity and hung up the phone abruptly.