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.