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