03a00111
08-28-2000
Harold T. Bigland Petitioner, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Harold T. Bigland v. Dept. of the Navy
03A00111
August 28, 2000
.
Harold T. Bigland
Petitioner,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A00111
MSPB No. DC-0752-99-0555-I-1
DECISION
On June 28, 2000, Harold T. Bigland (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (the Commission) for
review of the Opinion and Order of the Merit Systems Protection Board
(MSPB) issued June 2, 2000, concerning an allegation of discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The petition is governed by the provisions of the
Civil Service Reform Act of 1978 and EEOC Regulations, 29 C.F.R. �1614.303
et seq. The MSPB found that the Department of the Navy (agency) had
not engaged in discrimination as alleged by petitioner. For the reasons
that follow, the Commission concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the Board's determination that petitioner
failed to prove that the agency discriminated against him based on his
race (White) when it removed him from his position of WS-4102-09 Painter
Supervisor constitutes a correct interpretation of the applicable laws,
rules, regulations, and policy directives and is supported by the record
as a whole.
BACKGROUND
The agency removed petitioner from his Painter Supervisor position for
failure to carry out his duties as a supervisor and leaving the work site
without proper permission. Petitioner appealed his removal to the MSPB,
and a hearing was held. The MSPB Administrative Judge (AJ) sustained
the agency's charges against petitioner and upheld the removal.
A review of the record indicates that during the night shift of January
19-20, 1999, petitioner's crew of five painters and a team leader were
to use only grey and red paint in a portion of the bilge area of a ship
that was in dry dock. Petitioner's employees were not cleared to paint
nuclear materials. However, it was discovered that a tank containing
nuclear materials was painted white. The tank containing the nuclear
materials had not been radiologically cleared and approved for painting,
and the tank was painted with the wrong kind of paint. This resulted
in a great deal of additional expense, as well as embarrassment, for
the agency. The record also indicates that on the evening in question,
petitioner and his men were scheduled to work a 12 hour shift. However,
petitioner and his men left after completing only eight hours of work.
With respect to the charge of failing to carry out the duties of a
supervisor, petitioner was accused of failing to monitor the status
of the assignment during the work evolution to ensure work was being
performed in accordance with work instructions and failing to keep his
supervisor informed of job progress and the need to adjust the work
schedule. A third specification, failing to muster employees at the end
of shift was not sustained by the deciding official. The AJ relied on
petitioner's position description and noted that petitioner testified
that he was aware of cost overruns on the bilge painting project
that he was supervising and found petitioner knew the bilge painting
work was running behind schedule and over cost or both. The record
indicates petitioner was familiar with his work site, and knew the
work that needed to be accomplished for the project. Petitioner also
acknowledged that he knew about the tank with the nuclear material and
that it should not be painted. The AJ also noted that none of the other
supervisors testified that they made decisions to cut overtime and send
workers home. The AJ found the testimony of petitioner's supervisor
more credible than that of petitioner on the question of whether he
needed to check with his supervisor before deciding that the night's
work was completed. Testimony indicated that there was additional work
that petitioner's crew could have done. In addressing the failure to
monitor the work of his employees, the AJ found that the fact that a
potentially hazardous mistake occurred indicated that the monitoring was
not effective. Thus, the AJ noted that petitioner could have and should
have monitored the work site more closely at the time in question. As
such, the agency's reasons for removing petitioner were sustained.
In discussing the reasonableness of the penalty, the AJ noted that
although petitioner had more than 28 years of service with the agency,
this was petitioner's fourth offense in the last two years for similar
charges. The other charges involved sloppy workmanship, inattention to
supervisory duties and failing to follow proper work procedures.
With respect to petitioner's discrimination claims, the AJ found that
petitioner generally argued that African-American supervisors were not
disciplined for mistakes made by their workers. However, petitioner did
not provide specific examples and there is no information in the file on
whether the other supervisors had a similar work history. The AJ found
that petitioner did not prevail on his race discrimination claims.
Petitioner filed a petition for review with the full Board. The full
Board denied petitioner's petition for review. Thereafter petitioner
filed a petition to the Commission, but did not present any new
arguments. Rather he includes a copy of his petition to the full Board
and addresses testimony in the record.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to the allegation of discrimination based on race constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive and is supported by the evidence in the record as a whole.
29 C.F.R. �1614.305(c).
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance
to his or her allegation. Petitioner's claim of disparate treatment is
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). In general, for
petitioner to prevail, he 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
consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 867, 875 (1984).
The Commission's analysis need not focus on the establishment of
the prima facie case where the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Washington, v. Dept. of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming that petitioner established a prima facie case of discrimination,
the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Petitioner was a Painter
Supervisor. He admitted to knowing that the tank with the nuclear
material should not have been painted. Information in the record from the
employee who painted the tank indicates that it took four hours, and it
was in an area near where the other items were being painted. There is
no real explanation as to why petitioner did not notice the work this
employee was doing. Further, petitioner was aware that the project
was behind schedule and facing cost over runs. The Commission is not
convinced by petitioner's arguments the he should not be responsible
for the mistake of his crew member. Petitioner complained that another
supervisor who was African American had not left a turnover sheet for
the next day's crew and was not disciplined. However, failure to leave a
turnover sheet did not require two weeks delay in a project, additional
costs and embarrassment for the agency, and the potential for even more
damages in terms of health and safety. Petitioner has not shown that
the agency's reasons for its action were a pretext for discrimination.
Based on the foregoing, the Commission concurs with the Board's finding
that petitioner's removal was not the result of unlawful discrimination.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
Board's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
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,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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
August 28, 2000
__________________
Date