Lee Chapman, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 13, 1999
01970598 (E.E.O.C. May. 13, 1999)

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.