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.