01970555
05-24-1999
Darnell Gardner, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Darnell Gardner v. Department of the Navy
01970555
May 24,1999
Darnell Gardner, )
Appellant, )
) Appeal No. 01970555
v. ) Agency No. 94-00213-003
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of 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.
Appellant alleges that he was discriminated against on the basis of race
(African American) when he was not selected for a firefighter position.
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 in March 1994, appellant applied for reinstatement
as a firefighter in the Operations Department at the agency's Naval Air
Station in Key West, Florida. When he was not selected, appellant sought
EEO counseling and subsequently filed a complaint. At the conclusion
of the investigation, appellant initially exercised his right to a
hearing before an EEOC Administrative Judge, but subsequently withdrew
his hearing request, and asked the agency to issue a decision on the
evidence of record.
In its FAD, the agency found that while appellant established a
prima facie case, he failed to establish, by a preponderance of the
evidence, that the agency's legitimate, nondiscriminatory reason for his
non-selection was a pretext for racial discrimination. Specifically, the
agency determined that appellant had an inexcusable history of absenteeism
and tardiness. It is from this decision that appellant now appeals.
Basd on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), we agree with the agency that while
appellant established a prima facie case of racial discrimination,
appellant failed to prove that, more likely than not, the agency's
legitimate, nondiscriminatory reason for its action was a pretext for
racial discrimination. In reaching this conclusion, we note the record
reveals that during his previous employment with the agency, appellant
developed a pattern of poor attendance and tardiness which influenced the
decision to terminate him in 1982. Management specifically declined to
recommend appellant for selection because, regardless of qualifications,
poor attendance on the part of firefighters compromises public safety.
Appellant contends that the real reason he was not selected was because
the selecting officials were racist, as evidenced by a phone call with the
Fire Chief, wherein, appellant asserts the Fire Chief accused appellant
of "raping White girls." The Fire Chief denies having ever made such
a comment or having indulged in any racial discourse, and his denial
is corroborated by the Assistant Fire Chief who was present during the
entire phone conversation.
Therefore, after a careful review of the record, including appellant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
May 24,1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations