01a54196
11-16-2005
Benjamin F. Yap, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Benjamin F. Yap v. Department of the Navy
01A54196
November 16, 2005
.
Benjamin F. Yap,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A54196
Agency No. 03-62381-011
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a WM-9952-16, Deck Engineering Machinist at the agency's
Military Sealift Command in Virginia Beach, Virginia (Activity).
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 4, 2003, alleging that he was discriminated against
on the bases of race (Asian), color (brown), and disability (back problem)
when on June 27, 2002, he was denied subsistence and quarter's allowance,
while he was in an unfit-for-duty status and had an expired Merchant
Mariner Document (Z card).
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD dated April 5, 2005, the agency concluded that complainant
failed to prove, by a preponderance of the evidence, that he was
discriminated against in the matters alleged. The FAD found that
the agency articulated legitimate, nondiscriminatory reasons for
denying complainant's request for subsistence and quarter's allowance.
Specifically, the agency testified that there were two requirements
for receiving subsistence and quarter's allowance: a current Z card and
to be fit-for-duty. The agency noted that complainant did not fulfill
either of the requirements. The FAD also found that complainant failed
to establish that these reasons were a pretext for unlawful employment
discrimination.
On appeal, complainant contends, among other things, that the agency erred
in resolving the complaint without addressing the bases of race and color.
Complainant also contends that the agency erred in finding that the
comparative employee's (C1: Caucasian, white, no known disability)
Z card had not expired.
In response, the agency argues that it did not have to address whether
complainant established a prima facie case of discrimination because it
had articulated legitimate, nondiscriminatory reasons for its employment
decisions. The agency also argues that, unlike complainant, C1 received
subsistence and quarters because he was fit-for-duty. In regard to C1's
Z card, the agency contends that there was a 3 day period during which it
expired, but that it was due to the fact that the Coast Guard misplaced
his renewal application. The agency requests that we affirm its FAD.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated legitimate, nondiscriminatory reasons for its actions.<1>
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination or retaliation. Id.
The Commission finds that the FAD correctly concluded that the agency
did not discriminate against complainant on the bases of race, color
and/or disability. The Commission also finds that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discriminatory animus. In reaching
this conclusion, we note that the record indicates that other than
complainant's own assertions, there is no evidence that discrimination
occurred. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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
November 16, 2005
__________________
Date
1 Because we find that the agency has
articulated legitimate, nondiscriminatory reasons for its actions, we
do not reach the issue of whether complainant is a qualified individual
with a disability.