Jeffery Clark, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01973499 (E.E.O.C. Jan. 21, 2000)

01973499

01-21-2000

Jeffery Clark, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Jeffery Clark v. Department of the Navy

01973499

January 21, 2000

Jeffery Clark, )

Complainant, )

) Appeal No. 01973499

v. ) Agency No. DON-95-65923-041

) Hearing No. 140-96-8076X

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the bases of sex (male), reprisal

(prior EEO activity), and physical and mental disability (stress, anxiety,

lower back injury and related conditions), in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>

Complainant alleges he was discriminated against when: (1) on May 2,

1995, he was issued a Notice of Proposed Suspension; (2) his supervisor

wrote negative comments in his performance appraisal of June 14, 1995,

which caused him mental anguish, embarrassment and humiliation; and (3)

on June 26, 1995, he was issued a seven-day suspension. 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 complainant, an Instrument Mechanic, WG-3359-11,

at the agency's Naval Aviation Depot in Cherry Point, North Carolina,

filed a formal EEO complaint with the agency on August 2, 1995, alleging

that the agency had discriminated against him as referenced above. At the

conclusion of the investigation, complainant requested a hearing before

an Equal Employment Opportunity Commission (EEOC) Administrative Judge

(AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended

Decision (RD) without a hearing, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of discrimination on the bases of sex or disability because he

failed to demonstrate that similarly situated employees not in his

protected classes were treated differently under similar circumstances.

With respect to his claim of disability discrimination, the AJ also

found that complainant failed to establish a prima facie case because

he failed to demonstrate that he was substantially limited in any of his

major life activities due to his stress, anxiety, or lower back injury.

Moreover, the AJ noted that although management officials were aware

that complainant had a back injury, none were aware that complainant

had a disability, or considered him to be disabled.

With respect to complainant's claim of reprisal, the AJ found that

although complainant engaged in protected activity prior to the final

decision on his proposed suspension, he did not produce evidence

which proved a causal relationship between his protected activity and

suspension. As complainant failed to produce any evidence that the

agency issued the suspension due to his EEO activity, the AJ found that

there was no genuine dispute of material fact.

Assuming, arguendo, that complainant raised an inference of

discrimination, the AJ then concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions. Specifically,

complainant's supervisor (male, no disability) averred that complainant

was issued the suspension because he locked up his work (transducers) for

approximately three or four weeks, and refused to reveal what he had done

with his work. He stated that when complainant called into work while

on sick leave, and was asked where the transducers were, complainant

refused to reveal the information, stating that he would only tell a

co-worker the information. When he gave the phone to the co-worker,

complainant again refused to indicate the location of the work. It was

only later, when complainant came to work, did he locate the transducers,

and placed them in a location where a co-worker could find them.

The supervisor recalled that during a fact-finding meeting on April

24, 1995, complainant admitted that he completed the work on the four

transducers, but did not "transact a completion;" instead, he placed the

work where it could not be located. Therefore, the supervisor averred

that his supervisor issued complainant a Notice of Proposed Suspension

and later, a seven day suspension, for failing to complete work according

to procedures. According to the supervisor's affidavit, complainant's

failure to complete work in accordance with procedures increased its

turn-around time. With respect to complainant's performance appraisal,

the supervisor indicated that complainant's performance was "borderline"

due to his failure to turn work out in accordance with instructions,

which led to increased turn around time.

The AJ noted that other affidavits from management officials corroborated

the supervisor's statement. Specifically, the individual who proposed

the suspension (male, no disability) averred that complainant was issued

the suspension due to his delay in carrying out his work assignment,

disobedience to constituted authority, and concealment of a material fact.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination or retaliation. In reaching this conclusion, the AJ found

that complainant presented no persuasive evidence that the agency's

reasons lacked credence or were motivated by a discriminatory animus.

Most significantly, the AJ found that complainant did not dispute that he

engaged in the behavior of which he was accused by the agency. Rather,

he asserted that he was on prescription pain medication at the time of

the phone call, and could not recall the conversation.

On February 6, 1997, the agency issued a final decision which adopted

the AJ's RD.

On appeal, complainant argues that the agency misconstrued the facts and

the law, and failed to adequately investigate the complaint. Complainant

claims that he is an individual with a disability. Complainant denies

that he hid the transducers, but claims that he placed them in a secure

container which was accessible by the agency. Finally, he claims that

others have had slow turn around time with their work, but have not been

disciplined. In support of his appeal, complainant submitted documents

and evidence not contained in the investigative file.

In response to complainant's appeal, the agency argues that complainant

cannot present new evidence on appeal which was previously available.

Furthermore, the agency argues that any documents complainant submitted

on appeal are not evidence of pretext.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that complainant failed to

present evidence that any of the agency's actions were in retaliation

for his prior EEO activity or were motivated by discriminatory animus

toward his sex or disability. Furthermore, we concur with the AJ that

complainant presented no evidence that his back injury, stress or anxiety

substantially limited any of his major life activities. Finally, although

complainant argues that others have committed actions which have led to

slow turn around times, he failed to present persuasive evidence that

these individuals had slow turn around times due to circumstances similar

to complainant's. 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 (M1199)

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). 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:

January 21, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

_________________________

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.