01a03725
03-29-2001
Cleveland L. Williams, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Cleveland L. Williams v. Department of the Navy
01A03725
March 29, 2001
.
Cleveland L. Williams,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03725
Agency No. 9942237008
Hearing No. 110-99-8424X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges he was discriminated against on the bases of race (Black) and
reprisal (prior protected activity) when he was terminated during his
probationary period on November 17, 1998. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a police officer at the agency's
Naval Submarine Base, Kings Bay, Georgia facility, filed a formal EEO
complaint with the agency on March 13, 1999, alleging that the agency had
discriminated against him as referenced above. At the conclusion of the
investigation, complainant received a copy of the investigative report and
requested a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a decision finding no discrimination.
The AJ found that complainant failed to establish a prima facie case of
discrimination based on reprisal because there was no evidence that he
engaged in prior EEO activity,<1> but established a prima facie case
of discrimination based on race because his appraisal indicated that
he was meeting the agency's expectations and was allowed one incident
of unprofessional behavior. The AJ noted that he reached this finding
even though similarly situated employees not in complainant's protected
class were treated the same way under similar situations. The record
reveals that a white probationary police officer was also terminated
for a similar, first offense. The AJ concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
namely, that complainant was found to have violated the code of conduct
for police officers by using his position for personal satisfaction
while involved in an incident with a military officer and his spouse.
The AJ noted that, while termination may have been a harsh discipline to
impose on complainant for a first offense, there was no evidence that the
responsible official (RO) was motivated by discrimination. The AJ noted
that employers are allowed discretion to set penalties which will not be
second guessed by reviewing officials absent evidence of discrimination.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred by denying certain discovery
requests and key witnesses, making credibility determinations, weighing
the evidence, and finding no discrimination. In response, the agency
restates the position it took in its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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).
After a careful review of the record, the Commission finds that the
AJ's decision properly 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
motivated by discriminatory animus toward him based on race. We also
note that complainant engaged in protected activity subsequent to the
termination and therefore, fails to establish a prima facie case of
discrimination based on reprisal. Complainant filed motions to compel
discovery regarding the racial composition of police officers hired
and disciplined by the agency within the relevant time period which
the agency provided. We find in those records substantial evidence to
support the AJ's decision, namely, that the agency issued discipline,
including termination, to police officers not of complainant's protected
class for similar offenses. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 29, 2001
__________________
Date
1 It appears that this claim is based on complainant's December 8, 1998
appeal to the Merit System Protection Board, which dismissed the claim
on January 4, 1999, for lack of jurisdiction.