01970329
08-05-1999
Joe K. Gee, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Joe K. Gee v. Department of the Navy
01970329
August 5, 1999
Joe K. Gee, )
Appellant, ) Appeal No. 01970329
) Agency No. 95-41273-005
v. ) Hearing No. 150-95-8348X
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
DECISION
The Commission accepts appellant's timely 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, as amended, 42 U.S.C. �2000e et seq., and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
In his complaint, appellant alleged that he was discriminated against
based on his sex and physical disability (recovering alcoholic) when an
Employee Relations Specialist ("ERS") sent information regarding a "stay
of disciplinary action" (the "Stay") to personnel at his new assignment
in Cherry Point, North Carolina.
At the time in question, appellant was employed in the agency's facility
in Pensacola, Florida. On May 26, 1994, after appellant was observed
drinking in a bar during working hours, the agency issued him the Stay
in lieu of a Letter of Suspension on the basis that he had enrolled
in a rehabilitation program for treatment of his alcoholism. The Stay
provided that if there were any similar infractions within a 12-month
period, discipline would be issued.<1> Because appellant's relocation
to Cherry Point had already been approved, the Stay also provided that
officials there would be informed about the decision to issue the Stay
in lieu of the Letter of Suspension. Therefore, on August 1, 1994, the
ERS forwarded to Cherry Point's Labor Relations Specialist the records
regarding appellant's disciplinary history, including the Stay and a
report that he had completed the rehabilitation program referred to in
the Stay.
Appellant sought EEO counseling and filed his instant EEO complaint, which
was accepted and investigated by the agency. Appellant timely requested
a hearing before an EEOC Administrative Judge ("AJ"). Thereafter, the AJ
notified the parties of her intent to issue a recommended decision ("RD")
without a hearing (see 29 C.F.R. �1614.109(e)). After consideration
of appellant's brief in opposition, the AJ issued the RD, which found
no discrimination.
The AJ noted that the Stay specifically provided that officials at Cherry
Point would be informed as to the Stay, which was based on appellant's
enrollment in the rehabilitation program, and the decision to hold
the Letter of Suspension in abeyance. The AJ found that appellant did
not establish a prima facie case of sex or disability discrimination
since he failed to offer any evidence that he was treated differently
from similarly situated persons outside his protected classes. Even if
appellant could establish a prima facie case, the AJ found that he was
unable to prove pretext. In light of the provisions of the Stay, the
AJ was not persuaded by appellant's contentions that the material should
not have been sent because it was confidential or that it was sent in a
deliberate attempt to ruin his career and reputation. The AJ was also
unpersuaded by appellant's contention that the ERS had once made comments
to the effect that appellant was a "womanizer" and that such comments were
direct evidence that her actions constituted sex discrimination.<2>
The agency adopted the RD in its FAD. Appellant does not submit comments
on appeal. In its comments, the agency asserts that the AJ properly
issued an RD without a hearing and properly found no discrimination.
After a thorough review of the record, the Commission finds that the RD
adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission finds that the AJ
properly determined that appellant failed to proffer evidence such as
affidavits, interrogatory answers or other documentation raising any
genuine dispute as to the material facts at issue in this matter and,
therefore, properly issued an RD without a hearing pursuant to the
provisions of 29 C.F.R. �1614.109(e). The Commission further finds
that the AJ properly determined that appellant failed to establish a
prima facie case of discrimination based on sex or disability. In this
regard, the Commission finds that the agency was permitted to provide
the personnel office serving appellant with a copy of the Stay (which
was still in effect) and an indication that he had complied with the
Stay's provision that he complete a rehabilitation program. Therefore,
the Commission AFFIRMS the FAD.
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:
August 5, 1999
________________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 The Commission notes that an employer does not have to offer a "firm
choice" or a "last chance agreement" to an employee who performs poorly
or who has engaged in misconduct because of alcoholism. See Johnson
v. Department of the Interior, EEOC Petition No. 03940100 (March 28,
1996). However, an employer may choose to do so. See EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act (March 1, 1999).
2 The AJ also queried whether appellant timely sought EEO counseling
or whether, in light of the specific provisions of the Stay, he was
aggrieved by the ERS' actions in transmitting the material. However,
the Commission affirms on the basis that appellant failed to establish
a prima facie case of discrimination.