01973989
02-09-2000
Lawrence R. Henry, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, ______________________________)
Lawrence R. Henry v. Department of the Navy
01973989
February 9, 2000
Lawrence R. Henry, )
Complainant, )
)
v. ) Appeal No. 01973989
) Agency No. DON 95-00221-020
Richard J. Danzig, ) Hearing No. 370-96-X2253
Secretary, )
Department of the Navy, )
______________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) 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 Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq. <1>
Complainant alleged he was discriminated against based on his race (Native
American), physical disability (back and right leg injury), and reprisal
(prior EEO activity), when his request was denied for reimbursement for:
(1) official time spent meeting with his attorney regarding a prior
EEO complaint, and (2) mileage and expenses incurred to and from his
attorney's office with respect to the prior EEO complaint. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
Following the investigation, complainant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD),
finding no discrimination. The agency's FAD adopted the AJ's findings of
no discrimination. It is from this decision that complainant now appeals.
The record reveals that during the relevant time, complainant was employed
by the agency as an Industrial Trainee at Mare Island Naval Shipyard,
Vallejo, California.
By letter dated May 8, 1997, complainant's attorney notified the
Commission that complainant informed her that he had been paid for
the time expended meeting with her for the purpose of preparing his
EEO complaint. The Commission finds that this letter is tantamount to
a withdrawal of the issue regarding the denial of reimbursement for
official time spent with the attorney preparing the EEO complaint.
Therefore, this issue has been withdrawn.
With respect to the denial of reimbursement of mileage, the AJ
concluded that complainant failed to establish a prima facie case of
race, reprisal and disability discrimination. Assuming, arguendo,
that complainant established a prima facie case of race, reprisal, and
disability discrimination, the AJ determined that the agency articulated
a legitimate non-discriminatory reason for its action. Complainant's
request for reimbursement of mileage was denied pursuant to � 1614.605(b),
which provides that the agency is not obligated to pay travel expenses
to allow complainant and his representative to confer.
The AJ determined that complainant failed to establish that the agency's
articulated reason was a pretext for discrimination. Complainant did not
provide any evidence that he was discriminated against when his request
was denied for reimbursement of mileage for meeting with his attorney
regarding his EEO complaint.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's race and disability. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, and arguments and evidence not specifically addressed in this
decision, the Commission discerns no basis to disturb the AJ's findings
of no discrimination. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 9, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________
Date
__________________________
Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.