01966171
06-25-1999
Fred C. Gamble, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Fred C. Gamble v. Department of the Navy
01966171
June 25, 1999
Fred C. Gamble, )
Appellant, )
) Appeal No. 01966171
v. ) Agency Nos. DON-93-60036-004;
) 017, 018 and 019
Richard J. Danzig, )
Secretary, ) Hearing Nos. 370-96-X2095 thru
Department of the Navy, ) 370-96-X2098
Agency. )
)
_______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision
of the Department of the Navy (agency) concerning his complaint of
unlawful employment discrimination, in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act (ADEA) of 1967, as amended, 29
U.S.C. � 621, et seq. Appellant alleges discrimination based upon his
sex (male), race (Asian/Pacific Islander), color (brown), age (47) and
reprisal (prior EEO activity) when: (1) he was denied the opportunity to
apply and be considered for the position of Materials Handler Supervisor;
(2) the EEO officer (EO) used her dual roles as Deputy Equal Employment
Opportunity Officer (DEEOO) and Personnel Management Specialist/Site
Manager for the agency's Human Resources Office in a way that was
detrimental to him, thereby constituting a conflict of interest and
discrimination in the processing of complaint number DON-93-60036-004; (3)
the EO interfered with the processing of complaint no. DON-93-60036-004
by changing the definition of the issues in that complaint; and (4)
the processing of complaint no. DON-93-60036-004 was interfered with and
appellant's rights were violated when his anonymity was not maintained
during the formal processing of that complaint.
On March 8, August 12 and 20, 1993, appellant filed formal complaints
alleging discrimination as referenced above. Appellant's complaints were
accepted for processing. Following an investigation, appellant requested
a hearing before an EEOC Administrative Judge (AJ). On February 16,
1996, the AJ issued a notice of intent to render a decision without a
hearing pursuant to 29 C.F.R. �1614.109 (e). Both parties submitted
a response to the AJ's notice. Thereafter, on May 15, 1996, the AJ
rendered his recommended decision without a hearing. The AJ found that
no genuine dispute of material facts existed. When viewing the record
in the light most favorable to the appellant, the AJ found insufficient
evidence of discrimination and recommended a finding of no discrimination.
The agency subsequently adopted the AJ's recommended decision. It is
this agency decision which the appellant now appeals.
At the time of his application for the Materials Handler Supervisor's
position, appellant worked in the Public Works Center, San Francisco Bay
(PWCSFB) which is an entirely different federal entity from the agency.
Appellant was previously involuntarily transferred out of the agency
pursuant to a realignment. PWCSFB reports to the Naval Facilities
Engineering Command (NAFEC). The agency reports to the Naval Systems
Sea Command (NAVSEA). The record indicates that appellant was found
ineligible for the supervisor position because a hiring freeze imposed
by NAVSEA restricted the area of consideration to agency employees only.
The AJ determined that appellant failed to present a prima facie case
of discrimination with respect to all allegations. Specifically, the AJ
noted that appellant failed to present similarly situated individuals
outside appellant's protected classes who were treated more favorably
than appellant. In addition, the AJ found that the agency articulated
a legitimate, non-discriminatory reason for its action (i.e., a hiring
freeze). The AJ also found that appellant failed in his ultimate burden
of proving discriminatory animus. Specifically, the AJ noted that the
record indicates that the responsible official intended to allow the
transferred employees to be considered for the supervisor position,
prior to the imposition of the NAVSEA hiring freeze. In addition,
the AJ assumed appellant's contention that NAVSEA had overstepped its
authority by implementing a more restrictive freeze from prior years.
However, no evidence existed to indicate that the NAVSEA freeze, which
was imposed on every Weapons Station in the country, was instituted,
specifically to discriminate or retaliate against appellant. Moreover,
appellant failed to present evidence that NAVSEA was precluded by
regulation, statute, policy or past practice from implementing a more
restrictive freeze. Lastly, the AJ found no basis beyond appellant's
accusation to conclude that the responsible officials discouraged
NAVSEA to deny appellant's request for a waiver of the hiring freeze.
Accordingly, the AJ determined that appellant failed in his ultimate
burden of proving discriminatory animus.
With respect to allegation number two which refers to the processing
of his complaint, the AJ found that appellant failed to demonstrate
discriminatory animus or how he was harmed by the alleged conflict
of interest<1>. With respect to allegation number three, the AJ found
that EO's rewording of appellant's definition of issues did not alter
its content in any way. In addition, the AJ noted that appellant failed
to present evidence of discriminatory animus or harm. With respect to
allegation number four, assuming that there was a failure to maintain
appellant's anonymity, he has failed to demonstrate how he was harmed
or how his case was prejudiced as a result. Moreover, the AJ noted that
the record is devoid of evidence of discriminatory motive.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the AJ accurately set forth the
relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. Nothing asserted by appellant on appeal
differs significantly from arguments previously raised and given full
consideration by the AJ. Accordingly, we discern no basis upon which
to disturb the AJ's finding of no discrimination and hereby AFFIRM the
agency's final decision.
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. � 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 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:
6/25/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
1We note that, for the purpose of his recommended decision, the AJ
assumed a conflict of interest existed.