01990612
05-02-2000
Frances G. Brown, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Frances G. Brown v. Department of the Navy
01990612
May 2, 2000
Frances G. Brown, )
Complainant, )
) Appeal No. 01990612
v. )
) Agency No. 95-65889-023
Richard J. Danzig, )
Secretary, ) Hearing No. 150-96-8456X
Department of the Navy, )
Agency. )
______________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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., and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> Complainant alleged that she was
discriminated against on the bases of race (African-American), reprisal
(prior EEO activity), and mental disability (perceived impairment),
when her supervisor provided a prospective employer an unfavorable job
recommendation regarding her qualifications and recommended another
applicant for the position. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The record reveals that during the relevant time, complainant was
employed as a Budget Analyst at the agency's Naval Aviation Depot in
Pensacola, Florida. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on September 22, 1995. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
EEOC Administrative Judge (AJ) or alternatively, to receive a final
decision by the agency. Complainant requested a hearing before an AJ.
After several unsuccessful attempts to coordinate with complainant,
the AJ remanded the complaint back to the agency and recommended that it
dismiss due to complainant's failure to cooperate. Complainant appealed
the AJ's remand to the Commission. In Brown v Department of the Navy,
01984937 (July 30, 1998), we dismissed complainant's request to review
the AJ's remand as premature and instructed complainant that she may file
a new appeal after the agency issued a final decision in her case.<2>
Thereafter, the agency finding that there was sufficient evidence to
resolve the case, issued its FAD.
In its FAD, the agency concluded that complainant established a prima
facie case of reprisal because the evidence indicated that the agency was
aware of complainant's prior EEO activity and there was a sufficient nexus
between the agency's actions and the prior activity. However, the FAD
concluded that complainant failed to establish a prima facie case of race
discrimination. In reaching this conclusion, the FAD found that since the
individual selected for the position was the same race as complainant, she
failed to demonstrate that she treated differently as respect to race.
The FAD also concluded that complainant did not establish a prima
facie case of disability discrimination. While acknowledging that
complainant in the past had a history of mental illness, the agency
found that because she had been cleared to return to work in 1992,
her supervisor did not consider her disability upon her return to duty.
The agency further found that complainant failed to present any evidence
of disability subsequent to her return to work in 1992.
Assuming that complainant had established prima facie cases on all
bases, the FAD then concluded that management provided legitimate,
nondiscriminatory reasons for its actions, namely, that complainant's
supervisor denied providing any derogatory information about complainant
to the prospective employer. In support of the supervisor's statement,
the prospective employer stated that the supervisor expressed that all
her employees were good and did not make any unfavorable comments about
any of them.
Finally, the FAD found that while complainant disputed the supervisor's
account of the situation, she presented no evidence to demonstrate
discriminatory motive by her supervisor. On appeal, complainant
makes numerous arguments basically alleging that she fully established
continuing discrimination by the agency. The agency contends that the
FAD is supported by the record and requests that we affirm its decision.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
the Commission agrees with the agency that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination. Even assuming that
complainant had established prima facie cases of discrimination on all
bases, we find that other than her bare assertions, she has failed to
demonstrate that her supervisor played any part in her nonselection.
Both her supervisor and the prospective employer state that no
unfavorable information about complainant was exchanged during the
conversations between the two. The prospective employer states that
he chose the selectee based on her experience with manpower budgets.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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:
May 2, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 After reviewing the record, we find that the AJ did not abuse her
discretion in remanding the case back to agency. The record indicates
that the AJ made several unsuccessful attempts to schedule prehearing
conferences, but due to complainant's refusal to participate, she was
unable to proceed in adjudicating the matter.