01994106
02-14-2000
Durward L. Bell, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Durward L. Bell, )
Complainant, )
) Appeal No. 01994106
v. ) Agency No. BHEFFO9794H0140
) Hearing No. 310-98-5273X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (white), national origin
(United States of America, English/Scottish), sex (male), age (57),
and mental/physical disability (physical/diabetes and hypertension,
mental/attention deficit and hyperactivity disorder), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq.; the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791, et seq.<1> Complainant alleges he was discriminated
against when he was discharged during his probationary period. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission affirms the agency's final action.
BACKGROUND
The record reveals that during the relevant time, complainant
was appointed subject to a probationary period in the position of
clinical psychologist in the Department of Psychology of Darnell Army
Community Hospital, at Fort Hood, Texas. Believing he was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on February 12, 1997 on the issues and basis
described above. At the conclusion of the investigation, complainant
received a copy of the investigative report(s) and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a Recommended Decision (RD) finding no discrimination.
FINDINGS BELOW
The AJ concluded that complainant established a prima facie case of
sex discrimination, but failed to establish a prima facie case of age,
race and disability discrimination. With respect to the complainant's
age, race and disability claims, the AJ found that complainant failed
to demonstrate that similarly situated employees not in his protected
classes were treated differently under similar circumstances when
complainant was discharged during his probationary period.
The AJ concluded that complainant established a prima facie case of sex
discrimination because after complainant was terminated he was replaced
by someone outside of his protected class. The AJ then concluded that
the agency articulated legitimate, nondiscriminatory reasons for its
actions, namely, that the complainant had poor professional skills.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
creditable five doctors and a registered nurse who testified that
complainant was not doing his job and not helping patients.
The agency's final action implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final action.
ANALYSIS AND FIINDINGS
STANDARD OF REVIEW
The decision on an appeal from an agency's final action shall be based
on a de novo review, except that the review of the factual findings in
a decision by an AJ issued pursuant to � 1614.109(i) shall be based on
the substantial evidence standard of review. Pursuant to 64 Fed. Reg
37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405(a)), all
post-hearing factual findings by an Administrative Judge will be upheld if
supported by substantial evidence in the record. Substantial evidence is
defined as �such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding regarding whether or not discriminatory intent existed is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Complainant argued that the agency was
out to get rid of him. The AJ determined that the complainant's poor
professional skills were the reason for his discharge. Complainant
also argues that his disability was known to the agency and that the
agency used this knowledge to cause him to fail. The AJ determined
that complainant failed to establish that he was a qualified disabled
person, i.e. one who was able to perform the essential duties of the
position with or without accommodation. We find no reason to change
or supplement the factual determinations of the AJ. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's sex, race,
age or disability. We discern no basis to disturb the AJ's findings of
no discrimination which were based on a detailed assessment of the record
and the credibility of the witnesses. See Esquer v. United States Postal
Service, EEOC Request No. 05960096 (September 6, 1996). Therefore, after
a careful review of the response oappeal, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.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:
2/14/2000 ____________________________
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:
_______________ __________________________
Date Equal Employment Assistant
1 On 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.