Ulysses Coates, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 29, 2000
01973702 (E.E.O.C. Jun. 29, 2000)

01973702

06-29-2000

Ulysses Coates, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Ulysses Coates v. Department of the Navy

01973702

June 29, 2000

Ulysses Coates,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01973702

Agency Nos. 94-00151-053

94-00151-079

Hearing Nos. 170-96-8084X

170-96-8085X

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concluding that the agency did not discriminate against him in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq., Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In accordance

with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405), the complainant's appeal from the agency's final decision in

the above-entitled matter has been accepted by the Commission. For the

reasons that follow, the FAD is AFFIRMED.

In Agency No. 94-00151-053 (complaint 1), complainant alleged

discrimination on the bases of age (DOB: October 1, 1935), mental

disability (Situational Reaction Anxiety), and reprisal (prior EEO

activity), when: (1) on March 9, 1994, management issued complainant

an absent from work order; (2) management failed to restore him to his

permanent position of Painter Foreman after his compensation claim was

denied by the Department of Labor; (3) after complainant submitted the

required medical certification, management issued a second absent from

work letter, dated March 24, 1994; (4) management failed to respond

to complainant's Requests for Intervention; (5) management denied

complainant's request for a reasonable accommodation for an occupational

injury; (6) management denied complainant a response to his March 19,

1994 letter; (7) management denied complainant a response to his March 17,

1994 letter; (8) management denied complainant sick leave on March 7,

1994, and charged him with annual leave without consent for the period

March 14 through March 17, 1994; (9) management denied complainant's

requests for a 1993 performance appraisal, differential pay, overtime

pay, training, use of the Career Training Center and payment of health

insurance; and, (10) management carried complainant in non-pay status

for approximately thirty-five days without his consent.

In Agency No. 94-00151-079 (complaint 2), complainant alleged

discrimination on the bases of race (Black), age (DOB: October 1, 1935),

mental disability (Situational Reaction Anxiety), and reprisal (prior

EEO activity), when: (1) management converted his accrued leave and

sick leave into two payments; and, (2) the agency notified complainant,

by letter dated June 2, 1994, that he was indebted to the agency for

the amount of $160.00.

At the time of the alleged discriminatory events, complainant was employed

as a WS-09 Painter Supervisor at the Philadelphia Naval Shipyard and

ultimately retired from the agency in 1995. Believing that he was

the victim of discrimination, complainant sought EEO counseling and,

thereafter, filed two formal EEO complaints (complaint 1, dated May 27,

1994 and complaint 2, dated August 29, 1994). The agency accepted the

complaints for investigation and complied with all of our procedural and

regulatory prerequisites. Subsequently, complainant requested a hearing

before an EEOC Administrative Judge (AJ), which was held on December 6,

1996. On January 13, 1997, the AJ issued a recommended decision (RD)

finding no discrimination. Thereafter, the agency adopted the RD and

issued a FAD, dated March 6, 1997, finding no discrimination. It is

from this agency decision that complainant now appeals. No contentions

were submitted on appeal.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as "such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding regarding whether or not

discriminatory intent existed is a factual finding. See Pullman-Standard

Co. v. Swint, 456 U.S. 273, 293 (1982).

In her RD, the AJ concluded that complainant failed to establish a

prima facie case of race or age discrimination. The AJ reasoned that

complainant failed to present a similarly situated comparator that was

treated more favorably. With respect to the disability-based claims,

the AJ concluded that complainant had failed to establish a prima

facie case, failed to show that he was even requesting a reasonable

accommodation, and failed to show that he was treated less favorably

than any possible comparator. The AJ further reasoned that the agency

had articulated legitimate, nondiscriminatory reasons for its actions,

which complainant failed to rebut. While the AJ found that there

was sufficient evidence to establish a prima facie case of reprisal

discrimination, she concluded that the credible hearing testimony of

complainant's supervisor and the record in its entirety supported the

agency's legitimate, nondiscriminatory reasons for its actions. Again,

complainant failed to show that the agency's reasons for its actions

were pretextual.

After careful review of the entire record, and arguments and evidence

not specifically addressed in this decision, the Commission finds that

the AJ's RD presented the relevant facts, and properly analyzed the

appropriate regulations, policies and laws. The Commission discerns no

basis to disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

June 29, 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. We further note that the Rehabilitation Act was amended in

1992 to apply the standards in the Americans with Disabilities Act (ADA) to

complaints of discrimination by federal employees or applicants for

employment. Since that time, the ADA regulations set out at 29 C.F.R. Part

1630 apply to complaints of disability discrimination. The regulations,

as amended, may also be found at the Commission's website at www.eeoc.gov.