01a00295
02-09-2000
Marcial R. Remitera, Complainant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.
Marcial R. Remitera, )
Complainant, )
)
v. ) Appeal No. 01A00295
) Agency No. 97-0401
Togo D. West, Jr., )
Secretary, )
Department of Veteran's Affairs, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision, dated August 27, 1999, which the agency issued pursuant to 29
C.F.R. �1614.110.<1> The Commission accepts the complainant's appeal
in accordance with EEOC Order No. 960, as amended.
After obtaining counseling, the complainant filed a formal complaint,
dated May 24, 1996. Therein, he alleged that based on his race
(Asian/Pacific Islander), color (brown), national origin (Filipino),
and/or age (49), the agency discriminated against him when it terminated
his temporary employment as a GS-3 File Clerk, effective January 12,
1996, and failed to rehire him in that position on January 15, 1996.
When the agency investigated the complaint, the complainant also alleged
discrimination based on physical disability (40% service connected
disability for kidney problems and diabetes).<2> Following the agency's
investigation, the complainant requested a hearing on the complaint.
However, he subsequently requested a final agency decision without a
hearing. The agency then issued a final decision wherein it found that
the complainant failed to prove discrimination based on disability because
there was no evidence in the record that the complainant's impairments
substantially limited a major life activity. The decision also found
that, even assuming the complainant had established a prima facie case
of discrimination based on race, color, national origin, and age, he
failed to prove that the agency's articulated reasons for its actions
were a pretext for discrimination.
On appeal, the complainant contends that this case is about what he says
and what they say. He also contends that while he was employed at the
agency's Outpatient Clinic in Orlando, Florida, there were only three
Filipino employees, all of whom where assigned in the filing room. The
complainant objects to the statement that he would shy away from the phone
as a blatant stereotyping of Filipinos who speak English as their second
language. He describes his prior work experience to disprove the statement
and also lists individuals who could attest to the kind of worker he is.
After a review of the entire record, the Commission finds that the
complainant failed to prove that, more likely than not, the agency's
actions were motivated by discrimination based on race, color, national
origin, age, or physical disability.<3> The agency terminated the
complainant's employment at the expiration of his temporary appointment
as it had terminated the employment of all other file clerks with
temporary appointments. The agency subsequently rehired three of the
twenty individuals who had held temporary appointments, but did not rehire
the complainant. All three rehired individuals had received satisfactory
performance ratings, as had the complainant. However, the record contains
testimony which indicates that the complainant was not rehired because
he had not wanted to answer the phone and to deal with angry patients
while employed by the agency. On appeal, the complainant describes why
he believes his prior experience proves this testimony to be false.
However, the record does not contain any evidence that specifically
contradicts this testimony. While some witnesses indicated that the
complainant was a good worker, these witnesses did not indicate that
the complainant answered the telephone and otherwise dealt with angry
patients. Nor does the record establish that file clerks were not required
to perform such duties. The record also does not contain any evidence
which directly proves discrimination. The record further lacks evidence
that the complainant's work performance was so far superior to that of
the rehired employees that a discriminatory motive should be inferred.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's finding
that the complainant failed to prove the alleged discrimination.
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:
February 9, 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 Assistant1On 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.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
3For purposes of this decision, the Commission will assume that
the complainant is a person with a disability as defined in 29
C.F.R. �1630.2((g).