01A21043
03-10-2003
James R. Diekmann, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
James R. Diekmann v. Department of the Navy
01A21043
March 10, 2003
.
James R. Diekmann,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A21043
Agency No. 96-68436-002
Hearing No. 380-98-8310X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Career Resource Specialist,
GS-101-9, at the agency's Naval Submarine Base Bangor, located in
Silverdale, Washington, filed a formal EEO complaint on September 6,
1996, alleging that the agency had discriminated against him on the
bases of sex (male) and disability (depression) when he was issued a
memorandum indicating that he was late in completing an assignment.<1>
At the conclusion of the investigation, 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 bench
decision finding no discrimination.
The AJ found that in 1992, complainant suffered from some kind of medical
condition or nervous breakdown, and was diagnosed with depression.
Complainant takes medication which apparently controls his depression.
Complainant alleges that he was given a complex, time-consuming assignment
on May 20, 1996, with a due date of May 24, 1996. When complainant
was unable to complete the assignment within the required time period,
he was issued a memorandum stating that he was irresponsible for turning
in the assignment late.
The AJ concluded that complainant established a prima facie case of sex
discrimination because although complainant did not present any evidence
of comparators who were not similarly disciplined for the same offense,
complainant showed that he was singled out for difficult assignments
with short deadlines. The AJ found that complainant failed to establish
a prima facie case of disability discrimination because complainant's
depression is under complete control by his medications and therefore,
he does not have any limitations. However, the AJ assumed arguendo that
complainant established a prima facie case of disability discrimination,
and looked to the agency's legitimate, nondiscriminatory reason for
both allegations of discrimination. The AJ found that the agency
provided a legitimate, nondiscriminatory reason for giving complainant the
memorandum; namely, that complainant failed to complete the assignment by
the due date. The AJ further found that complainant did not establish, by
a preponderance of the evidence, that the agency's articulated reason was
a pretext to mask unlawful discrimination. In reaching this conclusion,
the AJ found that although the agency could have communicated better
with complainant and did not give complainant adequate notice to complete
his assignment in a timely manner, complainant failed to prove that the
agency's action was a pretext for discrimination against his sex and/or
disability. The agency's final order implemented the AJ's decision.
Complainant argues on appeal, among other things, that the AJ erred by
refusing complainant's request to bring witnesses to testify in regard to
a claim of retaliation. We note that the AJ refused to address the claim
of retaliation because it was not raised prior to the hearing nor was it
investigated by the agency. There is nothing in the record to indicate
that the complaint was amended or otherwise altered to include the
claim of retaliation, and therefore, we shall not address it on appeal.
The agency requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, regardless of whether a hearing was held.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995). Even assuming arguendo that complainant established a prima
facie case of disability and sex discrimination, we find that complainant
failed to establish that the agency's legitimate, nondiscriminatory reason
for issuing him the memorandum was a pretext for discrimination. In so
finding, we note that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's sex or disability.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We discern no basis to disturb the AJ's decision. 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 agency's final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
March 10, 2003
__________________
Date
1 In a prior case, Diekmann v. Department of the Navy, EEOC No. 01971112
(December 4, 1997), we found that complainant stated a claim of sex and
disability discrimination in regard to this issue. It was subsequently
remanded to the agency and now is the issue on appeal.