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.