01972605
08-31-1999
Anthony J. DeLello, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Anthony J. DeLello, )
Appellant, )
) Appeal No. 01972605
v. ) Agency No. 95-00151-025
) 95-00151-057
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of 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. In Complaint #1, (95-00151-025), appellant
alleges he was discriminated against based on reprisal when: (1) he
was removed from the third shift on April 24, 1994; (2) his request
for one hour of annual leave was denied on April 22, 1994; and (3) he
was threatened with disciplinary action between June 1994 and October
1994, for committing seven infractions. In Complaint #2 (95-00151-057),
appellant alleges he was discriminated against based on race (White),
color (white) and reprisal for prior EEO complaint activity when (4) he
was suspended for two calendar days without pay. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a Painter Supervisor I, at the Philadelphia Naval Shipyard. Appellant
alleged in Complaint #1 that management took the above action against
him because of his outspoken and written criticism of his first level
supervisor's slurs and acts toward the black sandblasters. Believing he
was a victim of discrimination, appellant sought EEO counseling and,
subsequently, filed Complaint #1 on January 19, 1995 and Complaint #2
on April 28, 1995. At the conclusion of the investigation, appellant
requested a hearing before an Administrative Judge (AJ) but failed to
appear for a telephonic prehearing conference. The AJ remanded appellant's
complaints back to the agency for �failure to cooperate� and recommended
that the agency issue a FAD.
With respect to Complaint #1, the FAD found that appellant failed to
establish a prima facie case of reprisal because he presented no evidence
that management was aware that he served as a witness in another EEO
complaint.
Nevertheless, the FAD held that the agency articulated non discriminatory
reasons for its actions. With regard to allegations #1 and #3, the FAD
found that based on the interactions and observations of his supervisor
(SV), appellant was removed from the third shift, and threatened with
disciplinary action for committing seven infractions. The FAD indicated
that appellant had been counseled several times regarding the safety
of his subordinates, the use of protective equipment and his sleeping
on the job. It was noted that appellant also failed to obey a direct
order when he allowed two of his subordinates to take leave after he
was told that �nobody goes home.� The FAD indicated that SV proposed
to suspend appellant for 14 days but before any action could be taken
however, the SV was moved to another work site. As such, the proposal to
suspend was mitigated down to a two day suspension, involving only those
charges that were fully supported by evidence: (1) failure to follow
established leave procedures; (2) failure to follow a direct order of
his supervisor; and (3) leaving Navy premises without proper permission.
These three items comprise the issues involved in Complaint #2. As to
allegation #2, the FAD found that appellant's request for leave was
denied because it was deemed that his presence was necessary due to a
�turnover� situation. It was also noted that he had not put his request
in writing and that his request for leave was not due to an emergency.
The FAD also made a finding of no discrimination for Complaint #2, stating
that appellant failed to establish a prima facie case of reprisal,
race and color discrimination because he failed to identify others,
who were not members of his protected class who were treated differently
when charged with similar infractions. Again, assuming arguendo the FAD
concluded that the agency had articulated legitimate nondiscriminatory
reasons for its actions, namely, that the agency was providing discipline
for appellant's actions. The FAD also found that appellant had failed
to present evidence that the agency's articulated reasons were a pretext
to mask unlawful discrimination.
On appeal, appellant contends that these complaints should be remanded
for a hearing before an AJ. The agency requests that we affirm its FAD.
The Commission agrees with the agency that appellant failed to
establish a prima facie case of reprisal with regard to Complaint
#1. We find that management was not aware of appellant's prior EEO
activity, therefore a nexus can not be established linking the protected
activity and the adverse action.<1> With regard to Complaint #2, the
Commission agrees that appellant failed to establish a prima facie case
of race and color discrimination. In order to establish a prima facie
case of race discrimination, appellant must show that he belongs to a
statutorily protected class and that he was accorded treatment different
from that accorded persons otherwise similarly situated who are not
members of the class. McDonnell Douglas v. Green, 411 U.S. 792 (1973).
In this case, there is no evidence that any similarly situated employee
received more favorable treatment than appellant. We disagree with the
agency regarding reprisal and find that appellant established a prima
facie case of reprisal since it is likely that management was aware of
Complaint #1. We find however, that the agency articulated legitimate
non discriminatory reasons for its actions while appellant failed to
present credible evidence that the agency's articulated reasons were
pretext for discrimination.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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 31, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1As to allegation #3, we find that EEOC Regulation 29 C.F.R. �1614.107(e)
provides, in part, that the agency shall dismiss a complaint or a portion
of a complaint that alleges that a proposal to take a personnel action,
or other preliminary step to taking a personnel action, is discriminatory.
In this case, appellant was only threatened with disciplinary action,
as such, allegation three should have been dismissed.