05A10909
10-26-2001
John J. Poxon, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
John J. Poxon v. Department of the Navy
05A10909
October 26, 2001
.
John J. Poxon,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A10909
Appeal No. 01984210
Agency No. DON-94-60259-009
Hearing No. 340-96-3847X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in John
J. Poxon v. Department of the Navy, EEOC Appeal No. 01984210 (June
28, 2001). EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant alleged he was discriminated against on the bases of age
(D.O.B. 8/28/34), disability (right lower extremity and lower back)
and reprisal (prior EEO activity) when: (1) his supervisor (CS)
left confidential information about him on CS's desk in 1994; (2) CS
reprimanded him for having his sick leave approved by someone else and
for not following the chain of command in May 1994; and (3) he was given
an �exceeds fully successful� or level 4 performance appraisal rating
in 1994.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination on any of complainant's allegations. The agency's final
decision implemented the AJ's decision.
Pursuant to complainant's appeal, the Commission found assuming that
complainant was a qualified individual with a disability, he failed
to present evidence that any of the agency's actions were motivated
by discriminatory animus toward his disability or his age or were
in retaliation for complainant's prior EEO activity. Initially,
the Commission agreed with the AJ's finding that complainant failed
to establish a prima facie case of age or disability discrimination,
as there was no evidence that similarly situated individuals outside of
complainant's protected groups were treated differently under similar
circumstances. Further, we agreed with the AJ's finding that while
complainant established a prima facie case of retaliation regarding
the reprimand and appraisal rating, the agency articulated legitimate,
nondiscriminatory reasons for its actions, and complainant failed to meet
his burden in demonstrating that the agency's reasons were pretextual.
Finally, we agreed with the AJ's finding that complainant failed to
establish that he was subjected to a hostile work environment.
In his request for reconsideration, complainant alleges that the agency
failed to produce a naval officer during the investigation with the
explanation that this officer could not be located. Further, complainant
alleges that with the truthful testimony of the naval officer in question
at the hearing, his appeal would not have been necessary.
A review of the record indicates that the agency attempted to locate the
officer in question during the investigation, but was unable to do so.
At the case hearing before the AJ, the agency's counsel stated that he
personally attempted to locate the officer whom complainant wanted to
testify at the hearing. The agency's counsel stated that he contacted
the agency's Judge Advocate General Office at Commander Naval Air Forces,
Pacific Fleet for assistance in locating the officer as the investigation
revealed that the officer left the agency in 1994 or 1995. The agency's
counsel further stated that the agency was unable to find a current
address for the officer as he was no longer associated with the agency.
At the hearing, complainant's counsel stated requested that the AJ make
an adverse inference against the agency due to the inadequacy of the
agency's counsel to locate the officer at issue.
In her Recommended Decision, the AJ noted that complainant's counsel
moved for her to draw an adverse inference against the agency based
on the unavailability or lack of production of the officer. However,
the AJ found that there was not an adequate basis to infer an adverse
inference with respect to the officer's proposed testimony. Recommended
Decision at 6. As the AJ found no adverse inference against the agency
resulting from its inability to find the officer at issue and further
found the agency's testimony to be credible, the Commission finds that
there is no basis to disagree with the AJ's findings and conclusions
in her Recommended Decision. See Malley v. Department of the Navy,
EEOC Appeal No. 01951503 (May 22, 1997); Willis v. Department of the
Treasury, EEOC Appeal No. 05900589 (July 26, 1990).
Thus, after a review of the complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01984210 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 26, 2001
__________________
Date