01974561
01-15-1999
Isidro R. Madrid, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Isidro R. Madrid v. Department of the Army
01974561
January 15, 1999
Isidro R. Madrid, ) Appeal No. 01974561
Appellant, ) Agency No. ACBW9606G0330
v. ) Hearing No. 350-97-8036X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his 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. See EEOC Order No. 960.001.
In his complaint, appellant alleged that he was discriminated against
based on his race (Hispanic) and reprisal for prior EEO activity when he
was given an overall annual rating of "2" for the period ending October
31, 1995, and when his supervisor reversed his management advisories.
Appellant, a Position Classification Specialist ("PCS"), GS-12, timely
sought EEO counseling and filed his instant EEO complaint, which
was accepted and investigated by the agency. Thereafter, appellant
timely requested a hearing before an EEOC Administrative Judge ("AJ").
After a hearing, the AJ issued a recommended decision ("RD") finding
no discrimination. The agency adopted the RD in its FAD. On appeal,
appellant contends that the AJ did not address the complaint in accordance
with the law and the agency's guidance regarding the assignment of
ratings, that his clients were upset with him only because he would not
support their desire for higher grade classifications, and that agency
officials lied and falsified evidence.
With respect to the reversal of his management advisories, the AJ found
that appellant had abandoned this allegation at the hearing, by failing
to offer his own testimony on this issue and by failing to examine his
supervisor or other witnesses regarding this allegation. The Commission
notes that appellant does not challenge this ruling on appeal.
With respect to his overall annual rating, the AJ found that appellant
established a prima facie case of discrimination based on race and
reprisal. However, the AJ was not persuaded that appellant established
that the legitimate nondiscriminatory reasons for assigning him an
overall rating of "2" were a pretext for discrimination. While certain
other persons holding PCS positions received overall ratings of "1,"
the AJ found that appellant's supervisor credibly testified that he
was required to personally intervene on appellant's behalf to resolve
certain disagreements with appellant's clients, and was not required to
do so for the other PCS's. In this respect, one of appellant's clients
also testified at the hearing regarding her need to contact appellant's
supervisor to raise concerns about appellant's performance. Appellant
attempted to establish pretext by noting that he had not received a
midpoint evaluation and that his supervisor had not documented each of
the client complaints. However, the AJ found that the supervisor had
not conducted midpoint evaluations for any of his subordinates and that
documentation was not required because appellant's performance was still
judged to be at the satisfactory level.
After a thorough review of the record, the Commission is not persuaded
that the AJ failed to address this complaint in accordance with the law
or the agency's guidance regarding the assignment of ratings. Rather,
the Commission finds that the RD adequately set forth the relevant
facts and analyzed the appropriate regulations, policies and laws.
As for appellant's other contentions on appeal, the Commission generally
will not disturb the credibility determinations of an AJ when, as here,
such determinations are based on the AJ's observations of the demeanor
of the witnesses. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). Accordingly, the Commission
discerns no basis to disturb the AJ's finding that appellant failed to
establish discrimination. Therefore, it is the decision of the Commission
to AFFIRM the FAD.
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. �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 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. 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:
Jan 15,1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations