Carlos M. Orama, Complainant,v.Togo D. West, Jr., Secretary, Department of Veteran Affairs, Agency.

Equal Employment Opportunity CommissionFeb 8, 2000
01981186 (E.E.O.C. Feb. 8, 2000)

01981186

02-08-2000

Carlos M. Orama, Complainant, v. Togo D. West, Jr., Secretary, Department of Veteran Affairs, Agency.


Carlos M. Orama v. Department of Veteran Affairs

01981186

February 8, 2000

Carlos M. Orama, )

Complainant, )

)

v. ) Appeal No. 01981186

)

Togo D. West, Jr., ) Agency No. 97-0491

Secretary, )

Department of Veteran Affairs, )

Agency. )

____________________________________)

DECISION

Carlos M. Orama (complainant) timely filed an appeal with this Commission

from a final decision of the Department of Veteran Affairs (agency)

concerning his complaint of unlawful employment discrimination, in

violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq.<1> Complainant's claim of discrimination is based upon his

disability (speech impediment), when he was not promoted to an Accounting

Technician, GS-7, position in October, 1996. The appeal is accepted in

accordance with EEOC Order No. 960.001.

On December 11, 1996, complainant filed a formal EEO complaint

claiming discrimination as referenced above. The complaint was

accepted for processing and investigated. Following the completion of

the investigation, complainant was advised of his right to request a

hearing before an EEOC administrative judge. After complainant failed

to request a hearing, the agency issued a final agency decision of no

discrimination on August 27, 1997. It is this agency decision which

complainant now appeals.

In March, 1991, complainant was reassigned as an Accounting Technician,

GS-5, in the Accounts Payable Section of the Financial Management

Division at the agency's headquarters in Washington, D.C. Complainant

claims that he was told by the Director of Finance Service that this

position would lead to a GS-7 position. In October 1992, complainant

was promoted to an Accountant Technician, GS-6, position. In October

1996, complainant asked management for a promotion to an Accountant

Technician ,GS-7, position but was denied. Management explained that

there was insufficient work, at that time, to justify another GS-7 in

the organization. In addition, management explained that complainant's

performance did not meet the GS-7 level. Complainant's supervisors

testified that even though they recommended his promotion to the GS-6

level, they were not convinced that he was doing GS-6 level work.

The agency determined that complainant presented a prima facie case of

disability discrimination. However, the agency found that it articulated

legitimate, non-discriminatory reasons for its employment action.

Specifically, while the record indicates that complainant met the

time-in grade requirement, the evidence shows that management was not

convinced that complainant had the potential of performing at a GS-7

level. Specifically, according to his supervisors, complainant had

difficulty doing his daily work even though he had been doing such work

for years. In addition, complainant's supervisors testified that he

often forgot how to do certain tasks even though he had been trained.

In addition, the record shows that assuming complainant could work at

the GS-7 level, at the relevant time period, there was no need for an

addition GS-7 position due to a reorganization at the agency whereby 80%

of the work had been shifted to a facility in Austin, Texas. Lastly,

the agency found that complainant failed to demonstrate that the reasons

articulated by the agency for its employment action were pretextual or

based upon discriminatory motives. Accordingly, the agency determined

that complainant failed to prove disability discrimination.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that, in all material respects, the agency accurately set forth

the relevant facts and properly analyzed the case using the appropriate

regulations, policies, and laws. Since appellant presents no arguments

on appeal, we discern no basis to reverse the agency's finding of no

discrimination. Accordingly, it is the decision of the Equal Employment

Opportunity Commission to AFFIRM the final agency decision.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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. 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 (Z1199)

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:

2/8/00

_______________ _________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on __________________.

By: _________________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999) where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.