Matthew L. Jones, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 13, 2001
07A00002_r (E.E.O.C. Dec. 13, 2001)

07A00002_r

12-13-2001

Matthew L. Jones, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Matthew L. Jones v. Department of the Navy

07A00002

December 13, 2001

.

Matthew L. Jones,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 07A00002

Agency No. 97065923

Hearing No. 140-98-8174X

DECISION

The agency timely appealed the decision of the Administrative Judge

finding that complainant was subjected to discrimination in violation

of Title VII of the Civil Rights Act of 1964, 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 and in reprisal for prior protected activity when he was issued

a seven-day suspension, effective June 8, 1996, for �Inappropriate

Behavior� concerning two unrelated incidents which occurred in January

1996. Complainant contends that he was not at fault in incident 1,

an altercation between himself and a white co-worker; and that he was

falsely accused in incident 2 as having made a threatening remark.<1>

The record reveals that complainant, an Aircraft Electrician at the

agency's Naval Aviation Depot, Cherry Point, North Carolina, filed a

formal EEO complaint which was accepted by the agency for investigation.

At the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). The AJ issued a decision without

a hearing, finding discrimination on the basis of race, but not reprisal.

The AJ concluded that complainant established a prima facie case of

race discrimination because he provided evidence to show that he was

a member of a protected class and that he was treated less favorably

than similarly situated co-workers outside of his protected class.

The AJ found that although complainant and the white co-worker who were

involved in the altercation received the same discipline, complainant was

then treated less favorably because he was publicly escorted out of the

premises by a security guard, causing him humiliation, whereas the record

failed to show whether the white co-worker was treated in this manner.

In making this finding, the AJ noted that the agency did not dispute

that the white co-worker was treated differently than complainant after

being issued the suspension.

The AJ then concluded that the agency did not articulate a legitimate,

nondiscriminatory reason for its actions. Specifically, regarding

incident 1, the AJ found that the agency had no reasonable explanation

for treating the complainant as if he were the perpetrator instead of

the victim, indicating that the record showed that the white co-worker

initiated the altercation, and grabbed and pulled complainant after

complainant retreated from the confrontation. Regarding incident 2,

the AJ similarly found that the agency had no reasonable explanation

for finding that the complainant made the threatening remark complained

of by another white co-worker, given that two objective eye-witnesses

testified that he did not make the threatening remark. Accordingly,

the AJ concluded that the complainant proved, by a preponderance of the

evidence, that he was discriminated against on the basis of race when

the agency issued the seven-day suspension.

The AJ determined that complainant failed to establish a prima facie

case of reprisal because his EEO activity was approximately seven years

prior to the adverse action at issue, and that it was unlikely that

the responsible agency officials were aware of the prior activity.

Neither complainant nor the agency has appealed this determination.

The agency's final action rejected the AJ's decision. In its timely

appeal, regarding incident 1, the agency argues that the AJ erred when

he found that the complainant was the victim of an unprovoked attack,

pointing to witness statements that complainant used �vile� language

during the altercation, and impugned the white co-worker's ability

as an electrician, noting that the latter is a cause of action for

slander in North Carolina. The agency contends that both complainant

and the white co-worker were equally engaged in the altercation, and that

they appropriately received the same discipline. Regarding the guarded

escort after receiving the suspension, the agency argues that it was not

aware that this was part of complainant's claim, and it was not given an

opportunity to prepare a response. Nonetheless, the agency avers that

the guarded escort was an approved procedure, and not evidence of animus.

Furthermore, the agency argues that the record is devoid of any evidence

as to whether or not the white co-worker was escorted off the premises in

the same manner as complainant. Therefore, the agency argues that the

claim should fail because complainant carries the evidentiary burden,

and not the agency.<2> The agency further argues that complainant and

the white co-worker were not similarly situated because a different

supervisor delivered the suspension and arranged for the guarded escort,

such that a prima facie case cannot be established.

With respect to incident 2, the agency argues that complainant does not

deny that he uttered the threat at issue, and notes that the other white

worker felt so threatened at hearing these words that he was compelled

to file a complaint. Then, although during a �fact finding� it was

determined that this statement was not directed to the white co-worker,

the agency makes the point that it was justified in using this incident

in the suspension because its shows that the use of such a phrase in

the work place has the proven potential of causing conflict.

With respect to both incidents, the agency argues its officials

presented a legitimate nondiscriminatory reason for the suspension,

finding that the deciding official was diligent in keeping the workplace

free from such hostilities, and that his record of employee suspensions

for inappropriate conduct demonstrated this. The agency additionally

argues that the complainant failed to present sufficient evidence to

prove that this reason was a pretext for discrimination.

Complainant has not submitted a response to the agency's appeal.

Initially, we find that the AJ and the agency properly determined

that complainant failed to establish a prima facie case of reprisal.

The record reflects that complainant had been engaged in prior protected

activity approximately seven years before the alleged incident of

reprisal; however, the evidence of record does not support a finding

that the agency was aware of the prior protected activity, or that the

suspension that is at issue in the instant complaint occurred within

such a time period and in such a manner, that reprisal motivation could

be inferred.

In reviewing the record, we concur with the AJ's determination regarding

incident 1 that the altercation was provoked by the white co-worker,

who attempted to physically restrain complainant when he tried to

disengage from the heated confrontation. We find it irrelevant that

complainant used vile language or attacked the white co-worker's ability

as an electrician during the exchange because this does not justify a

physical assault. Furthermore, we find that the agency did have notice

of complainant's claim that he was treated differently when he received

an armed escort off the premises, because it is referenced in the EEO

Counselor's report, the formal complaint, and the investigative record.

Moreover, there is no need to draw an adverse inference against the agency

here, because the agency's failure to rebut the complainant's otherwise

uncontroverted testimony that the white co-worker was not humiliated with

the guarded escort is sufficient to establish this fact in the record.

We also disagree with the agency's position that complainant and the

white co-worker were not similarly situated, because the same deciding

official suspended them both for the same infraction, and yet one left

under guarded escort and the other did not regardless of which of the

supervisors made the decision to use a guard.

Additionally, contrary to the agency's finding regarding incident 2, we

find that complainant not only denied making the threatening statement,

but had two witnesses verify that he did not make it. The agency's

argument that the statement was made but not directed to the other white

co-worker is without merit.

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb

the AJ's decision. Therefore, after a careful review of the record,

including complainant's arguments on appeal, the agency's response,

and arguments and evidence not specifically discussed in this decision,

the Commission MODIFIES the agency's final action. The finding of no

reprisal is AFFIRMED. The finding of no race discrimination is REVERSED.

This matter is REMANDED for further action in accordance with this

decision and the ORDER below.

ORDER

The agency is ORDERED to take the following remedial action:

1. The issues of compensatory damages and attorney's fees and costs

are REMANDED to the Hearings Unit of the Charlotte, North Carolina

EEOC District Office. The agency is directed to submit a copy of the

complaint file to this Hearings Unit within fifteen (15) calendar days

of the date that this decision becomes final. The agency shall provide

written notification to the Compliance Officer at the address set forth

below that the complaint file has been transmitted to the Hearings Unit.

2. The agency shall determine the appropriate amount of back pay

(with interest, if applicable) and other benefits due complainant,

pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar

days after the date this decision becomes final. The complainant shall

cooperate in the agency's efforts to compute the amount of back pay and

benefits due, and shall provide all relevant information requested by

the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to the complainant

for the undisputed amount within sixty (60) calendar days of the date

the agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

3. The agency shall expunge the seven day suspension at issue from

complainant's personnel file, along with all documentation regarding

incident 1 and incident 2.

4. The agency shall conduct EEO training for all management officials,

supervisors, and co-workers who played any role in complainant's

suspension.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Navy Aviation Depot in Cherry Point,

North Carolina copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

December 13, 2001

Date

1The remark is: �If it had hit me, I'd have snatched his ass off that

helicopter,� referring to a tool dropped by the other white co-worker

earlier in the day. The alleged remark was made many hours later,

at the conclusion of the shift.

2The agency also argues that the Commission order that the record

be supplemented with additional evidence, noting that it would be

inappropriate to draw an adverse inference against the agency given its

lack of notice.