Stephanie S. Osurman, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01971071 (E.E.O.C. Jan. 15, 1999)

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