01982966
01-29-1999
Sherman L. Mitchell, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Sherman L. Mitchell v. Department of the Navy
01982966
January 29, 1999
Sherman L. Mitchell, )
Appellant, )
)
v. ) Appeal No. 01982966
) Agency No. (MC)96-62204-0125
Richard J. Danzig, ) Hearing No. 340-96-3690X
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On February 24, 1998, Sherman L. Mitchell (appellant) timely appealed
the final decision of the Department of the Navy (agency), dated January
29, 1998, which concluded he had not been discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In his complaint, appellant had alleged that
agency officials discriminated against him on the basis of his race
(black) when he was not given the opportunity to be detailed as the
Business Center Manager in September 1995. This appeal is accepted in
accordance with the provisions of EEOC Order No. 960.001.
The record establishes that appellant was employed by the agency at
the Marine Corps Logistics Base in Barstow, California. At the time
of the events at issue, appellant had been temporarily detailed into
a supervisory position as a Painter Supervisor, WG-9. On August 31,
1995, the Manager of the Support Business Center, who supervised
appellant, appointed another grade 9 employee (white) ("Employee A")
to a sixteen-day detail as Acting Manager during his scheduled absence.
The record reflects that the only employees who could have been appointed
to this detail were appellant, Employee A and another white employee of
a higher grade. However, that third employee was not available for the
detail as he was also scheduled to be absent during the same time period.
The record indicates that Employee A was selected for the detail because
he already worked in the Support Business Center and could carry on his
regular duties while still serving as Acting Manager.<1>
On November 27, 1995, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against him
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On January 9, 1998, pursuant to 29 C.F.R. �1614.109(e), the AJ issued a
decision without a hearing, finding appellant had not proven he had been
discriminated against by the agency on the basis of his race when he was
not assigned to the detail in question. In reaching this decision, the
AJ noted that the fact that appellant was already serving in a detail
to a supervisory position cut against an inference that he was being
discriminated by agency management. On January 29, 1998, the agency
issued its final decision, adopting the AJ's recommended decision, and
entering a finding of no discrimination. It is from this decision that
appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns
no basis to disturb the AJ's finding of no discrimination. Nothing
proffered by appellant on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Jan 29, 1999
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Manager was on an extended sick leave during the investigation
of appellant's complaint and did not submit a sworn statement as to his
reasons for selecting Employee A for the detail. However, his reasoning
was discussed in the EEO Counselor's report.