01a03440
08-10-2000
Howard Wendell Brown, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Howard Wendell Brown v. Department of the Navy
01A03440
August 10, 2000
.
Howard Wendell Brown,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03440
Agency No. 98-65886-013
Hearing No. 150-99-8117X
DECISION
The complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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. <1> 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 complainant alleges he was discriminated
against on the bases of race (Black), sex (male) and reprisal when the
agency's responsible management official (RMO) did not provide him with an
opportunity to be considered for a GS-11 Hub Scheduler position. For the
following reasons, the Commission AFFIRMS the agency's final action.
The record reveals that the complainant, a GS-09 Production Controller
at the agency's Naval Air Station, Jacksonville, Florida facility,
filed a formal EEO complaint with the agency on January 20, 1998,
alleging that the RMO had discriminated against him as referenced above.
At the conclusion of the investigation, the complainant received a copy
of the investigative report and
requested a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that the complainant failed to establish a prima facie
case of race and sex discrimination. Specifically, the AJ found that
the complainant failed to demonstrate that similarly situated employees
not in his protected classes were treated differently under similar
circumstances when the RMO transferred a GS-11 employee (E1) into the
vacant GS-11 Hub Scheduler position.
The AJ also concluded that the complainant established a prima facie
case of reprisal discrimination because the record showed that he had
previously engaged in EEO activity of which the RMO was aware, he did
not receive the GS-11 Hub Scheduler position, and an inference of a
nexus existed.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
stated that E1 was well qualified for the position and that if it did
not fill the position quickly it might never be filled.
The AJ found that the complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination/retaliation. In reaching this conclusion, the
AJ found that the complainant did not dispute that E1 was qualified for
the position and even conceded that she was qualified while he admitted
that he was only minimally qualified. The AJ further found that the
complainant did not dispute the agency's contention that it may have
lost the GS-11 Hub Scheduler position if it did not fill it quickly.
The AJ found no evidence that the RMO reassigned E1 to the position
to prevent anyone, including the complainant, from obtaining the
Hub Scheduler position because of race, sex or prior EEO activity.
The agency's final action implemented the AJ's decision.
On appeal, the complainant restates arguments previously made at the
hearing. In response, the agency requests that we affirm its final
action.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951)(citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that the
complainant failed to present evidence that any of the agency's actions
were in retaliation for the complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's race or sex.
We discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including the complainant's
contentions on appeal, we AFFIRM the agency's final action.
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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 10, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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.