01981320
11-25-1998
Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, (V.A. Medical Center, Hampton, VA) Agency.
Peggy P. Boone v. Department of Veterans Affairs
01981320
November 25, 1998
Peggy P. Boone,
Appellant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
(V.A. Medical Center, Hampton, VA)
Agency.
Appeal No. 01981320
Agency No. 96-0335
EEOC Hearing No. 120-96-5469x
DECISION
On December 3, 1997, the appellant timely appealed the agency's final
decision (FAD) concluding that she was not discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000e et seq. In her complaint, appellant alleged that she
was discriminated against on the bases of her race (African American),
color (black) and in reprisal for prior EEO activity when she was given
a fully successful performance rating for the period ending March 31,
1995, and not given a cash award. The appeal is accepted in accordance
with the provisions of EEOC Order No. 960.001.
At the time of the alleged discrimination, the appellant was employed as
a GS-7 Staffing Assistant in the Human Resources Management Service at the
Medical Center in Hampton, VA. She filed the instant complaint in November
1995. After the agency completed its investigation of the complaint, the
appellant requested a hearing before an EEOC Administrative Judge (AJ).
After an evidentiary hearing, the AJ issued a recommended decision on
October 6, 1997, finding no discrimination. On November 18, 1997, the
appellant received an undated FAD adopting the AJ's recommended decision.
It is from this agency decision that the appellant now appeals.
After a careful review of the entire record, including the appellant's
submission on appeal, we find that the AJ's recommended decision
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Based on the evidence of record, we
discern no basis to disturb the AJ's finding of no discrimination.
The AJ correctly found that there was no evidence to support the
appellant's allegation that the rating official gave her a fully
satisfactory rating, rather than a higher rating, because of her race,
color or past EEO actitivity. The AJ found that the rating official gave
her a fully successful rating in spite of certain performance deficienies
because he recognized that she had a heavy workload during the rating
period. The AJ found that the appellant failed to demonstrate that
the agency's articulated legitimate non-discriminatory reasons for her
not receiving a higher rating (or a cash award associated with such a
higher rating) were a pretext for unlawful discrimination. Even though
she alleged that the rating official was unlawfully biased against
her because of her participation in the investigation of some other
employees' EEO investigations, the AJ found no evidence to support that
allegation. The AJ found that the same rating official had given the
appellant outstanding ratings in the previous years even though she had
similarly participated in the EEO investigations during some of those
earlier rating periods. Other evidence of record also showed no evidence
of unlawful bias in the appellant's performance evaluation at issue.
The same rating official evaluated the performance of twelve employees
for the rating period at issue. He rated three African-American and
three Caucasian employees outstanding. The other three African-American
employees (including the appellant) and two Caucasian employees were
rated fully successful, and one Caucasian employee was rated highly
successful. No employee with a fully successful rating received any cash
awards.
Accordingly, the FAD is AFFIRMED.
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. � l6l4.604(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. 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 25, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations