01971071
01-15-1999
Stephanie S. Osurman, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Stephanie S. Osurman v. Department of the Army
01971071
January 15, 1999
Stephanie S. Osurman, )
Appellant, )
) Appeal No. 01971071
v. ) Agency No. 94-07-0196
) Hearing No. 370-95-X2229
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Chinese/Filipino),
and color (brown), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges she
was discriminated against when: (1) on July 15, 1994, she was notified
that effective July 29, 1994, she would be terminated from her position
of Assistant Director of Supplemental Programs and Services Office,
GS-1701-08, during her probationary period; and (2) when during the
period of her employment, she was denied training and job assignments.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
in the above-referenced position at the agency's Child Development
Services Branch, Fort Shafter, Hawaii. After appellant was hired in a
one year probationary status by her former supervisor (FS) on September
15, 1993, FS observed that her work was not satisfactory and was not of
the quality FS believed she was capable of performing. FS left her
position only a few months later, and elected not to take any action
other than to inform appellant's new supervisor (S1) of appellant's
perceived short-comings, particularly an instance where appellant ignored
the instructions of FS during a meeting. During the first six months
of 1994, S1 also observed that appellant's work performance was not of
the quality expected in the position. Ultimately, S1 recommended that
the agency terminate appellant's probationary employment. Appellant's
termination letter noted, among other things, her poor job performance,
her insubordinate action when supervised by FS, and the abuse of her
position by misleading her second level supervisor (S2) into thinking
her child was in danger because of her former husband and needed to be
placed in an agency child care facility ahead of other children on a
waiting list.
Appellant alleges that her termination was motivated by race and color
animus, and notes, among other things, that her performance was not
evaluated, that S1 and S2 denied her training opportunities, and that
another employee was permitted to place her child ahead of others at the
day care center. Both FS and S1 stated that they gave appellant constant
feedback and training, and that FS prepared a memorandum concerning
her performance deficiencies for S1, but knew of no requirement to
give appellant a copy. S1 admitted that she withdrew appellant from a
training course in June of 1994, but explained that she was preparing
to terminate her at that time and thus did not want her to attend the
training program. The agency's Education Specialist, as well as both
S1 and S2, indicated that this training course was a basic course which
would not have trained appellant in the details of her position, and
that it would not have improved her performance.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on July 15, 1994.
At the conclusion of the investigation, appellant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a Recommended Decision
(RD) finding no discrimination. The AJ concluded that, even assuming
arguendo, appellant established a prima facie case of race and color
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that appellant's poor performance,
insubordinate acts, and abuse of her position to obtain child care
services, necessitated termination of appellant's probationary employment.
The AJ found that appellant did not present direct or indirect evidence
that the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ noted that the other
employee who placed a child into the day care center was not similarly
situated to appellant, and that after reviewing appellant's divorce
decree and record testimony, that appellant mislead S2 about her child
care situation. The agency's FAD adopted the AJ's RD. Appellant made
no contentions on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, we find that the AJ's RD
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We agree with the AJ's conclusion that appellant
failed to present evidence that the agency's decision was motivated by
discriminatory animus. 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 Gathers v. United
States Postal Service, EEOC Request No. 05890894 (November 9, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, after a careful review of
the record, including arguments and evidence not specifically addressed
in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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