01970598
05-13-1999
Lee Chapman, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Lee Chapman, )
Appellant, )
) Appeal No. 01970598
v. ) Agency No. 9560042001
) Hearing No. 340953836X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), and color
(black),<1> in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. when he was rated ineligible for
the position of Safety and Occupational Health Specialist, GS-9/11,
in September 1994. 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 appellant filed a formal EEO complaint with the
agency on February 22, 1995, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the agency's
investigation of the complaint, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination. The AJ concluded that
appellant had failed to establish a prima facie case of discrimination
having failed to introduce any evidence whatever that similarly situated
employees, not in his protected classes, were treated differently
under similar circumstances. The agency's FAD adopted the AJ's RD.
Appellant now seeks reversal of the FAD in this appeal.
The Commission finds that the AJ's RD summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that appellant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward appellant's race
or color. Moreover, appellant was unable to rebut the agency's evidence
that the selecting officials were unaware of appellant's race and color
at the time they determined him to be unqualified for the positions in
question. We discern no basis on which to disturb the AJ's finding of no
discrimination, based as it was on a detailed assessment of the record.
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:
5/13/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The formal
complaint indicated that appellant was alleging
discrimination on the basis of race and sex.
However, in its March 24, 1995 Notice of
Acceptance, the agency identified the bases
of the alleged discrimination as "Race (Black)
and Color (Black)." The notice requested that
appellant inform the agency within seven days if
the complaint's allegations had not been correctly
identified. Appellant raised no objection to
the agency's description of his allegations.