01973166
03-19-1999
Eugene Evans, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Eugene Evans v. Department of the Navy
01973166
March 19, 1999
Eugene Evans, )
Appellant, )
)
v. ) Appeal No. 01973166
) Agency No. DON-95-67001-N08
Richard J. Danzig, ) EEOC No. 140-96-8160X
Secretary, )
Department of the Navy, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e, et seq. The Commission
accepts this appeal in accordance with EEOC order No. 960.001.
Appellant filed a formal complaint alleging discrimination on the basis
of race (Black), sex (male), and reprisal (prior EEO activity), when
the following occurred: (1) he was denied time off when a coworker was
allowed time off, and when he was ordered to change other coworkers'
time cards; (2) his supervisors screened his work more closely than
others and found more errors; (3) his coworkers were allowed to take
extended lunch periods and he was not; (4) he came to work early and was
criticized for not getting his work done; (5) his supervisor required work
to be completed the following day but would not allow him to work late;
(6) the computer was made available to coworkers but not to appellant;
(7) his predecessor was provided "turnover" training and he was not;
and (8) during his first day of employment, appellant was introduced to
some staff members but not all. Following the agency's investigation,
appellant requested a hearing before an EEOC administrative judge (AJ).
On December 13, 1996, the AJ issued a Recommended Decision (RD) without a
hearing pursuant to 29 C.F.R. �1614.109(e), finding no discrimination.
In her RD, the AJ found that appellant had failed to establish a prima
facie case of discrimination based on race or sex with respect to any
of his allegations in that he failed to identify similarly situated
individuals who were treated more favorably than he was. However,
the AJ also found that appellant had established a prima facie case
of discrimination on the basis of reprisal. Assuming arguendo that
appellant had raised an inference of discrimination with respect to
his allegations of discrimination, the AJ found that the agency had
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, appellant's supervisor (Caucasian female) testified that
appellant was neither denied time off for MWR Fun Day, nor was he ordered
to change his coworkers' time cards. Instead, appellant's supervisor
testified that the comparative (Caucasian female) that appellant referred
to, had been given an incentive award which provided for a day off.
The supervisor testified that the comparative applied this award to the
Fun Day, and denied ordering appellant to change any employees' time card.
With respect to appellant's allegation that his work was screened more
closely than others, the supervisor testified that she began to screen
appellant's work more closely after errors were found.
Appellant also alleged that his coworkers were allowed to take
unscheduled, extended lunch periods (longer than 30 minutes) whereas
he was not. The supervisor testified that in the past, she has not had
a lunch policy in effect. Rather, she found that one became necessary
once appellant began requesting lunch during odd times. Thus, she
testified that she required appellant, as well as all other employees,
to take a lunch break from 1200-1300 hours.
Appellant also alleged that he came into work early and was criticized
for not getting his work done. In response, appellant's supervisor
testified that she was unaware that appellant was coming into work early.
With respect to appellant's allegation that he was not allowed to work
late, appellant's supervisor testified that she was not authorized
to allow appellant to work beyond his normal duty hours, and that she
believed appellant could complete his work within normal duty hours.
Appellant also alleged he was not provided computer or "turnover"
training. In response, the supervisor testified that appellant had
been hired based on his computer skills and that when training became
available, she would send him. Furthermore, she testified that appellant
had been given guidance when he was initially hired, and was advised to
ask any question if he needed assistance. Finally, appellant alleged
that on the first day of work he was introduced to some coworkers, but
not all. In response, appellant's supervisor testified that appellant
was introduced to all available personnel in the area.
In sum, that AJ found that appellant failed to present any persuasive
evidence proving that the agency's reasons for its actions were pretext
for discrimination, and that he was not discriminated against.
On September 26, 1996, the agency issued a final decision adopting the
AJ's recommended decision. 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 appropriate regulations, policies and laws.
We note appellant has not submitted any contentions on appeal. We discern
no basis in which to disturb the AJ's findings of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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. �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 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. 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:
March 19, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations