01975403
08-19-1999
William Belt, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
William Belt, )
Appellant, )
) Appeal No. 01975403
v. ) Agency No. 96-0049
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) 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.
Appellant alleges that he was discriminated against on the basis of race
(Black) when he received a lowered performance rating (Fully Successful)
on May 15, 1995. 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 Masonry Worker at the agency's Medical Center in Pittsburgh,
Pennsylvania (hereinafter the facility). Believing he was discriminated
against as referenced above, appellant sought EEO counseling and
subsequently filed a complaint on July 17, 1995. The agency accepted the
complaint for processing, and at the conclusion of the investigation,
appellant was granted thirty days to request a hearing before an EEOC
Administrative Judge. Appellant failed to request a hearing within the
thirty day time period. Thereafter, the agency, in accordance with 29
C.F.R. � 1614.110, issued a final decision finding no discrimination.
The FAD concluded that appellant established a prima facie case of
racial discrimination when he demonstrated that a similarly situated
co-worker outside of his protected class received a higher rating
(Highly Successful) for the rating period at issue. The FAD found
the agency articulated a legitimate, nondiscriminatory reason for the
Fully Successful rating, namely that appellant's work was satisfactory
but that his skills and judgment needed improvement. The FAD concluded
that appellant failed to prove that more likely than not, the agency's
explanation was a pretext for racial discrimination.
It is from this decision appellant now appeals. The agency requests
that we affirm its FAD. On appeal, appellant contends that the FAD only
addressed the issue of the lowered performance rating while it should have
addressed other allegations raised in the complaint. However, the agency
issued a decision on April 23, 1996, dismissing those allegations pursuant
to 29 C.F.R. � 1614.107(g) for failure to cooperate. Appellant appealed
this dismissal, and the Commission affirmed the agency's decision.
See Belt v. Department of Veterans Affairs, EEOC Appeal No. 01965519
(May 16, 1997). Accordingly, we will only review appellant's allegation
of racial discrimination in regard to the lowered performance rating.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), the Commission notes that the comparative
employee outside of appellant's protected class was not at the same grade
level as appellant although they worked together. As such, he was not
similarly situated to appellant. However, the testimony from current
facility employees suffices to support a finding of past disparate
treatment of Black employees in general, and appellant, in particular,
to infer a discriminatory animus. As such, we agree that appellant
established a prima facie case of racial discrimination. However, we
agree with the agency 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 evidence indicated that appellant's previous supervisor had
a reputation for being harder on Black employees and gave appellant a
Fully Successful rating for 1993-94, a rating which appellant disputed
and management amended to Highly Successful. However, appellant's
previous supervisor no longer works at the facility, and there is no
evidence that the supervisor responsible for giving appellant the Fully
Successful rating for 1994-95 was motivated by discriminatory animus
towards appellant's race. In fact, appellant admitted that his current
supervisor's criticism of his work was appropriate and directed towards
improving appellant's masonry skills; and that he did not believe race
was a factor in the rating at issue. Moreover, of the several affidavits
contained in the file which address past discrimination problems at the
facility, no affiant connected the past racial discrimination problems
to appellant's current supervisor, who testified that he had no knowledge
of appellant's prior performance rating.
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 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations