01971402
03-12-1999
James R. Baytes, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James R. Baytes v. Department of the Navy
01971402
March 12, 1999
James R. Baytes, )
Appellant, )
)
v. ) Appeal No. 01971402
) Agency No. DON-96-65923-003
Richard J. Danzig, ) Hearing No. 140-96-8125X
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the Department of
the Navy (agency), concerning his complaint alleging that the agency
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against him on the bases of his sex (male) and physical disability
(chest pains, anxiety, sick stomach with physical manifestations)
when, on May 2, 1995, his supervisor issued him a "Memorandum for the
Record" for sick leave usage. Following the agency's investigation of his
complaint, appellant requested a hearing with an EEOC administrative judge
(AJ). Thereafter, the AJ followed appropriate procedure for issuing a
recommended decision without a hearing. Pursuant to notice, the agency
submitted a Memorandum Brief supporting the AJ's notice of intent to
issue findings and conclusions without a hearing. Appellant did not
submit any additional information or evidence regarding his complaint.
Subsequently, on September 20, 1996, the AJ issued a recommended decision
without a hearing finding no discrimination. The agency subsequently
adopted the AJ's recommended decision in a final agency decision dated
November 4, 1996.
In her recommended decision, the AJ found that appellant failed to
establish a prima facie case of disparate treatment discrimination on any
basis alleged because he failed to show that he was subjected to less
favorable treatment than a similarly situated employee. The AJ also
noted that appellant failed to present any other evidence to support an
inference of discrimination. The AJ further determined that appellant
failed to prove that he was a qualified person with a disability as
defined by the Rehabilitation Act.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981); and Oberg v. Secretary of the
Navy, EEOC Request No. 05890451 (July 20, 1989)(applying the McDonnell
Douglas standard to disability discrimination based on disparate
treatment). The Commission concludes that, in all material respects,
the AJ accurately set forth the facts giving rise to the complaint and
the law applicable to the case. We further find that the AJ correctly
determined that appellant failed to establish that he was a qualified
person with a disability. As appellant offered no additional persuasive
evidence in support of his claim on appeal, we discern no legal basis
to reverse the AJ's finding of no discrimination. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the final agency decision finding 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. 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 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations