George W. Allen, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 25, 2002
01A12478 (E.E.O.C. Sep. 25, 2002)

01A12478

09-25-2002

George W. Allen, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


George W. Allen v. Department of the Navy

01A12478

September 25, 2002

.

George W. Allen,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A12478

Agency No. DON 99-31935-006

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission AFFIRMS the agency's final decision.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a Civilian Mariner, Electronics Technician, WM-15, aboard

the USNS Guadalupe, Military Sealift Command, Afloat Personnel Management

Center, Virginia Beach, Virginia. Complainant sought EEO counseling and

subsequently filed a formal complaint on May 6, 1999. Complainant alleged

that he was discriminated against based on his religion (Christian) when:

on September 9, 1998, complainant's supervisor (S1) replied to

complainant's request to attend prayer service on ship by saying, �well,

I guess I can't keep you from doing that�;

on about November 1, 1998, co-worker two made a blasphemous statement

about complainant's religion in saying it was a �crock of s---�;

Complainant also alleged that he was discriminated against based on his

age (DOB 5/20/32) when:

in September 1998, in the Chief's Club in Sasebo, co-worker three

made the statement �that old f� was going to be demoted to second

electrician�;

on October 5, 1998, S1 forced complainant into the machine shop and

yelled at him furiously demanding to know if he had gone to the Captain;

in October 1998, co-worker one ridiculed him in front of other crew

members about his religious beliefs and made blasphemous attacks;

in October 1998, co-worker two, referring to complainant, stated that

he was �a stupid f---� because he was �too old to learn anything�;

on approximately December 26, 1998, the Chief Engineer made the statement

that complainant �should work for six months as a Second Electrician

and then apply for a promotion to Electronic Technician.� Complainant

alleged that the Chief Engineer also said that he wanted complainant

off the ship.

Complainant further claimed that he was discriminated against based on

his religion (Christian) and age (DOB 5/20/32) when:

on or about September 20, 1998, he heard from another employee that

co-worker three made the statement, �he doesn't have the right to start

a career at his age,� referring to complainant.

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 concluded that management articulated legitimate,

nondiscriminatory reasons for its actions, therefore, it was no necessary

to determine whether complainant established a prima facie case of

discrimination.

Regarding claim (1), the agency alleged that S1 told complainant that he

could not be denied access to any religious service. The agency alleged

that S1 asked that, in the future, complainant give S1 sufficient time

to comply with religious accommodation requests, as the ship was in

emergency dry-docking and a great deal of work was in progress.

Regarding claim (2), the agency alleged that co-worker two used the words

�a crock of s---�, not focused on complainant's religion, but because

complainant told him that he had to be saved before it was too late, and

complainant insisted that he had to change his religion (Roman Catholic).

The agency found that complainant told co-worker two that Catholicism

was �a whore that rides a horse holding a loaf of bread in one hand and

a glass of wine in the other.�

Regarding claim (3), the agency found that co-worker three did not

recall making the statement, �that old f� was going to be demoted.....�

The agency concluded that co-worker three was never complainant's

supervisor, and could never affect complainant's evaluations, promotions,

or demotions.

Regarding claim (4), the agency concluded that complainant was never

forced into the engine shop, either by physical force or threat of

disciplinary action. The agency found that S1 ordered complainant

to go into the machine shop because, at the time, it was the closet

area available for talking in private. The agency alleged that S1 was

�piqued� at the complainant, because complainant did not follow the

chain of command when he had complaints. The agency also noted that S1

acknowledged raising his voice, but he apologized for yelling.

Regarding claims (5) and (6), complainant's co-workers strongly denied

the alleged incidents. The agency found that co-worker two assisted

complainant in the performance of his duties. The agency alleged that

complainant was treated the same as the other unlicenced people in

the department.

Regarding claim (7), the agency found that the purpose of the meeting

on December 26, 1998, was to find out why complainant was so unhappy.

The agency concluded that during the meeting, complainant did not mention

feeling discriminated against based on his age or religion. The agency

further found that at the conclusion of the meeting, all parties shook

hands and pledged to improve the working environment. The agency found

that the Chief Engineer was aware of complainant's age because his date of

birth was listed on the crew list, but was never aware of complainant's

religion. The agency found that the Chief Engineer made the statement

that complainant �should work for six months as a Second Electrician and

then apply for promotion to Electronic Technician,� but these statement

had nothing to do with complainant's age. The agency concluded that

the statement represented an assessment about how long it would take

complainant to be �up to speed.� The agency also concluded that it would

take six months, because complainant would not ask for assistance or read

the Engineer's operating manuals and apprentice seaman books available

in the ship's library. Finally, the agency concluded that the Chief

Engineer never made the statement that he wanted complainant off the ship.

Regarding claim (8), the agency found that co-worker three did not recall

ever making that statement. The agency also found that at this moment

co-worker three was the youngest member of the crew, but complainant

was not the oldest.

On appeal, complainant, among other things, described several incidents

which occurred since 1995, that he alleges were harassment based on

his age and religion. Complainant contends that several co-workers

and management had a notable hostile attitude toward him. The agency

requests that we affirm its FAD.

ANALYSIS AND FINDINGS

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requiring a showing that age was a determinative factor, in the sense

that "but for" age, complainant would not have been subject to the adverse

action at issue). A complainant must first establish a prima facie case

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

reason was a factor in the adverse employment action. McDonnell Douglas

Corp. v. Green, 411 U.S. at 802; Furnco Construction Corp v. Waters,

438 U.S. 567 (1978). Next, the agency must articulate a legitimate,

nondiscriminatory reason for its action (s). Texas Department of

Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has

offered the reason for its action, the burden returns to the complainant

to demonstrate, by a preponderance of the evidence, that the agency's

reason was pretextual, that is, it was not the true reason or the action

was influenced by legally impermissible criteria. Burdine, 450 U.S. at

253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

the complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. U.S. Postal Service

Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).

Assuming arguendo, that complainant established a prima facie case of

discrimination based on his religion and/or age, the Commission finds

that the agency has articulated legitimate, nondiscriminatory reasons

for its actions, as mentioned above. For example, as to claim (1),

the agency established that S1 told complainant that he could not deny

access to any religious service; as to claim (2), the agency established

through co-worker's two testimony, that he made the statement, but,

it was not focused on complainant's religion, and instead focused on

complainant's repetitive request that co-worker two needed to be saved

and change his faith.

The burden returns to complainant to establish that the agency's

explanations were a pretext for discrimination. Upon review, the

Commission finds that the complainant has failed to do so. The

complainant merely argues that since 1995 he was subjected to hostile

work environment. We find that complainant failed to show any

evidence or witnesses to show that the agency's reasons were pretext

for discrimination. Finally, we find that complainant did not rebut

any of the agency's reasons for its actions. For example, complainant

did not rebut that S1 did not deny him access to the religious service

nor that co-worker two made the statement described in claim (2), in

response to complainants insistence that he convert his religion.

We consider now complainant's claim that he was subjected to harassment

based on religion and/or age. Harassment of an employee that would

not occur but for the employee's race, color, sex, national origin,

age, disability, or religion is unlawful. A single incident or

group of isolated incidents will not be regarded as discriminatory

harassment unless the conduct is severe. Whether the harassment

is sufficiently severe to trigger a violation of Title VII must be

determined by looking at all the circumstances, including the frequency

of the discriminatory conduct, its severity, whether it is physically

threatening or humiliating, or a mere offensive utterance, and whether

it unreasonably interferes with an employee's work performance.

We conclude that the actions at issue in this complaint are not enough to

establish that complainant was subjected to a hostile work environment on

any of the protected bases he has alleged. We conclude that complainant's

alleged incidents were not shown to be sufficiently severe or pervasive

to unreasonably alter or interfere with complainant's work environment.

Thus we conclude that complainant has not demonstrated by a preponderance

of the evidence that he was discriminated against on the bases of his

age or his religion.

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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

September 25, 2002

__________________

Date