05a00921
09-28-2000
Brian Craig, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Brian Craig v. Department of the Navy
05A00921
September 28, 2000
.
Brian Craig,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Request No. 05A00921
Appeal No. 01993825
Agency No. 9800166002
DENIAL OF REQUEST FOR RECONSIDERATION
Brian Craig (complainant) initiated a request to the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision
in Brian Craig v. Department of the Navy, EEOC Appeal No. 01993825
(May 26, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request.
On January 27, 1998, complainant filed a formal complaint alleging
that he was subjected to discrimination on the basis of his race
(African-American) and sex (male), and subjected to retaliation due to
his prior protected activity when:
he was moved from the Comptroller Department into the Supply Department,
effective June 23, 1996;
(2) he did not receive the training required to perform his job duties,
while a White female did receive the training complainant requested;
(3) he was initially offered a full-time position, but later he found
that the hours had been cut back to a part-time position and he was
told that if he did not accept it, he would be taken off of the Priority
Placement Program list;
(4) he was forced to move back into the Comptroller Department to
perform duties in which he had no prior training.
The record reveals that during the relevant time, complainant was
employed as an Accounting Technician in the Accounting Division, first
in the Comptroller Department, and then in the Supply Department, of
the agency's Naval Air Facility Washington at Andrews Air Force Base,
Maryland. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
January 27, 1998. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or, alternatively, to receive a final decision by the agency.
Complainant requested that the agency issue a final decision.
In its FAD, the agency first found that while complainant established
a prima facie case of retaliation in regard to claim nos. 1, 2, and
4, he failed to do in regard to claim no. 3 because he acknowledged
in his affidavit that he did not think this action was due to his
prior activity. The agency also determined, based on statements in
complainant's affidavit, that claim 4 was based solely on retaliation.
The agency went on to find that management articulated legitimate
non-discriminatory reasons for its action, which complainant failed to
establish were a pretext for discrimination.
In his original appeal, complainant made some corrections to his
affidavit. He argued, for example, that all of the alleged adverse
actions were motivated by his race and sex, as well as his prior protected
activity. He did not, however, raise any new contentions. Although
complainant requested review of the prior decision, he did not submit
any statement explaining his reasons for doing so. He did not allege
that the prior decision involved a clearly erroneous interpretation of
material fact or law, or that the prior decision will have a substantial
impact on the policies, practices or operations of the agency. Thus, he
failed to demonstrate that his request meets either of the reconsideration
criterion.
Moreover, applying the standards set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the prior decision correctly determined that the agency's
finding of no discrimination was proper. Because the agency articulated
legitimate nondiscriminatory reasons for its actions, we will assume for
the sake of this discussion that complainant established a prima facie
case of race, sex, and reprisal discrimination in regard to all of his
claims. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711 (1983); Valencia v. United States Postal Service, EEOC
Petition No. 03990094 (March 16, 2000). Even making this assumption,
however, we find that complainant failed to establish he was subjected to
discrimination, as he failed to establish that the agency's explanations
were a pretext for discrimination.
In regard to claim nos. 1 and 4, the agency noted that it originally
transferred complainant's position from the Comptroller Department to
the Supply Department because his job duties were more appropriately
supervised by those in the Supply Department. Although complainant was
eventually transferred back to the Comptroller Department, he offered no
evidence to suggest that either move was motivated by his race or sex.
While the proximity in time between the transfer and his prior protected
activity raises an inference of reprisal discrimination, complainant
failed to sufficiently rebut the agency's explanation. Thus, complainant
failed to establish that his transfers from or back to the Comptroller
Department were motivated by a discriminatory animus towards his race,
sex, or prior protected activity.
Furthermore, the agency stated that complainant received the necessary
training, pointing to a training session he received in its Willow Grove
facility and on-the-job training. The agency explained that the White
female (CW1) named by complainant as receiving more training than he was
sent to New Orleans to attend a training program complainant had requested
because CW1 recently received a new function and had no background in it,
whereas complainant was better informed about the duties of his position.
The agency also noted that complainant resigned from the agency within
a month of his transfer back to the Comptroller Department, before he
could be scheduled for additional training. Complainant's supervisor
during these weeks testified that she was in training herself when
complainant was transferred and had not yet had time to schedule the
training he needed. Although complainant contended that the training he
received was not sufficient and there is some indication in the record
that complainant did need more training, there is insufficient evidence to
establish that he was denied training due to a discriminatory motivation.
Turning to the remaining claim, complainant failed to establish that
he was originally offered a full-time position and was subjected to
discrimination when he later learned that the position was part-time.
Several agency witnesses testified that the position had been changed
from a full-time to a part-time one long before complainant was selected
to fill it and that the person whom complainant was replacing worked
part-time. Complainant offered no evidence that the agency's action in
this regard was motivated by discriminatory animus.
Accordingly, the prior decision correctly affirmed the agency's finding of
no discrimination. As complainant's request for reconsideration failed
to meet the criteria of 29 C.F.R. � 1614.405(b), his request is denied.
The decision in EEOC Appeal No. 01975896 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 28, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.