Lawrence R. Henry, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, ______________________________)

Equal Employment Opportunity CommissionFeb 9, 2000
01973989 (E.E.O.C. Feb. 9, 2000)

01973989

02-09-2000

Lawrence R. Henry, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, ______________________________)


Lawrence R. Henry v. Department of the Navy

01973989

February 9, 2000

Lawrence R. Henry, )

Complainant, )

)

v. ) Appeal No. 01973989

) Agency No. DON 95-00221-020

Richard J. Danzig, ) Hearing No. 370-96-X2253

Secretary, )

Department of the Navy, )

______________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) 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., and

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

Complainant alleged he was discriminated against based on his race (Native

American), physical disability (back and right leg injury), and reprisal

(prior EEO activity), when his request was denied for reimbursement for:

(1) official time spent meeting with his attorney regarding a prior

EEO complaint, and (2) mileage and expenses incurred to and from his

attorney's office with respect to the prior EEO complaint. The appeal

is accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the agency's decision is AFFIRMED.

Following the investigation, complainant requested a hearing before

an Equal Employment Opportunity Commission (EEOC) Administrative Judge

(AJ). Following a hearing, the AJ issued a Recommended Decision (RD),

finding no discrimination. The agency's FAD adopted the AJ's findings of

no discrimination. It is from this decision that complainant now appeals.

The record reveals that during the relevant time, complainant was employed

by the agency as an Industrial Trainee at Mare Island Naval Shipyard,

Vallejo, California.

By letter dated May 8, 1997, complainant's attorney notified the

Commission that complainant informed her that he had been paid for

the time expended meeting with her for the purpose of preparing his

EEO complaint. The Commission finds that this letter is tantamount to

a withdrawal of the issue regarding the denial of reimbursement for

official time spent with the attorney preparing the EEO complaint.

Therefore, this issue has been withdrawn.

With respect to the denial of reimbursement of mileage, the AJ

concluded that complainant failed to establish a prima facie case of

race, reprisal and disability discrimination. Assuming, arguendo,

that complainant established a prima facie case of race, reprisal, and

disability discrimination, the AJ determined that the agency articulated

a legitimate non-discriminatory reason for its action. Complainant's

request for reimbursement of mileage was denied pursuant to � 1614.605(b),

which provides that the agency is not obligated to pay travel expenses

to allow complainant and his representative to confer.

The AJ determined that complainant failed to establish that the agency's

articulated reason was a pretext for discrimination. Complainant did not

provide any evidence that he was discriminated against when his request

was denied for reimbursement of mileage for meeting with his attorney

regarding his EEO complaint.

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 complainant's prior EEO activity or were motivated by discriminatory

animus toward complainant's race and disability. Therefore, after a

careful review of the record, including complainant's contentions on

appeal, and arguments and evidence not specifically addressed in this

decision, the Commission discerns no basis to disturb the AJ's findings

of no discrimination. Accordingly, it is the decision of the Equal

Employment Opportunity Commission to 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:

February 9, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________________

Date

__________________________

Equal Employment Assistant

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.