01a03185
07-14-2000
Clinton Zimmerman, Complainant, v. Richard Danzig, Secretary, Department of the Navy, Agency.
Clinton Zimmerman v. Department of the Navy
01A03185
July 14, 2000
Clinton Zimmerman, )
Complainant, )
)
v. ) Appeal No. 01A03185
) Agency No. DON-99-65540-002
Richard Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted by the
Commission in accordance with the provisions of 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).<1>
ISSUE PRESENTED
The issue presented is whether complainant has established that the
agency discriminated against him on the basis of age (50) and reprisal
(prior EEO activity) when he was issued an eight-day suspension on a
charge of falsifying time and attendance records (second offense).
BACKGROUND
In a complaint filed November 10, 1998, complainant, then a General
Engineer, GS-801-12, alleged that the agency discriminated against him
as delineated in the above-entitled statement �Issue Presented.� The
agency conducted an investigation, provided complainant with a copy of
the investigative report, and advised complainant of his right to request
either a hearing before an EEOC administrative judge (AJ) or an immediate
final agency decision (FAD). Complainant did not respond to the advisory.
On February 16, 2000, the agency issued a FAD finding no discrimination.
It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
This case involves a complaint alleging employment discrimination
based on age and reprisal. In any proceeding, either administrative
or judicial, involving an allegation of discrimination, it is the
burden of the complainant, appellant herein, to initially establish
that there is some substance to his or her allegation. In order to
accomplish this burden the complainant must establish a prima facie case
of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); see also Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978). This means that the complainant must present a body of
evidence such that, were it not rebutted, the trier of fact could conclude
that unlawful discrimination did occur. The burden then shifts to the
agency to articulate a legitimate, non-discriminatory explanation for
its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). In this regard, the agency need only produce evidence
sufficient �to allow the trier of fact rationally to conclude� that the
agency's action was not based on unlawful discrimination. Id. at 257.
Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, �going forward,� may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256. This analysis, developed in the context of
Title VII proceedings, also applies to cases arising under the ADEA.
Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).
Assuming for the sake of argument that complainant has established a
prima facie case of age and reprisal discrimination, the agency has met
its burden to articulate a legitimate, non-discriminatory explanation
for its actions. The agency explained that some six or seven weeks
after a staff meeting at which complainant's supervisor informed all
employees that time and attendance procedures would thenceforth strictly
be enforced, complainant signed out as having left at 2:40 p.m., which
was at least 10 minutes later than the time he actually left the office.
This circumstance was witnessed by two coworkers, who reported the
infraction to the supervisor, who in turn initiated disciplinary action.
Complainant offered no evidence to show that the agency more likely
was motivated by age-discriminatory or retaliatory animus in issuing
the suspension than by the fact of his misconduct and prior offense.
Accordingly, he has not established his claim of age and reprisal
discrimination.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 14, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
Date
1On 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.