01A10496
04-09-2002
Rodney Watson, Sr., Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Rodney Watson, Sr. v. Department of the Navy
01A10496
April 9, 2002
.
Rodney Watson, Sr.,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A10496
Agency No. 9944455010
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of his race (African-American) and color (black)
when, on February 1, 1999, he was issued a seven (7) day suspension,
effective February 25, 1999.
The record reveals that during the relevant time, complainant was employed
as a Machinist, WG-3414-10, at the agency's TRIDENT Refit Facility,
in Kings Bay, Georgia. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on April 13, 1999. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge (AJ) or alternatively, to receive a final
decision by the agency. When complainant failed to respond within the
time period specified in 29 C.F.R. � 1614.108(f),<1> the agency issued
a final decision.
In its FAD, the agency concludes that there were legitimate reasons for
the discipline, which complainant failed to establish to be pretextual.
Specifically, the proposed suspension was because complainant failed
to follow proper testing and verification procedures that resulted in a
failure of a critical submarine component. The supervisor (S1) considered
the seriousness of the offense, that it was a second offense of this type,
and the fact that complainant's prior disciplinary record included three
previous suspensions. In an attempt to establish pretext, complainant
argues that another employee, Caucasian (C1), received lesser discipline
for the same incident, and that this established that the challenged
action was motivated by race and color-based discrimination. The FAD does
acknowledge that C1 received lesser discipline than complainant for the
same incident. However, the FAD finds that this discrepancy is justified
by the fact that, unlike complainant, C1 had a spotless disciplinary
record prior to this incident, and offending employees are disciplined
at lower levels for lesser and first offenses with discipline increasing
as the severity and frequency occur. The FAD concludes that complainant
was not discriminated against, in that complainant failed to show by a
preponderance of the evidence that the agency's reason was pretextual.
On appeal, complainant reiterates that out of all of the individuals
who were involved in the incident in question, only he received a 14-day
suspension. The agency requests that we affirm its FAD.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. 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 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);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant established his prima facie case
of discrimination based on race and color, the Commission turns to
the agency to articulate a legitimate, nondiscriminatory reason for
its action. The proposed suspension was for complainant's �careless
workmanship (second offense) which resulted in delay of ship schedule
of USS Maryland.� See Report of Investigation (ROI), p. 234-5.
Several management officials confirm that it was part of complainant's
job to test the component fully and that his failure to do so caused
the actuator to fail, preventing the USS Maryland from submerging.
See ROI, p. 200-3, 209-11. The agency also explains that complainant
had received training in repairing and testing hydraulic actuators to
ensure that the associated valve operates properly. See ROI, p. 1, 288-9.
Complainant's position description includes responsibility for removing,
disassembling, cleaning, inspecting, repairing, reassembling, testing,
troubleshooting, maintaining and installing a variety of high pressure
air and hydraulic systems and components. See ROI, p. 253. In deciding
to suspend complainant for 14 days, the agency also took into account
complainant's history of discipline, including three previous suspensions.
See ROI, p. 24-49, 69-86. Upon review of the record, the Commission
finds that the agency has articulated a legitimate, nondiscriminatory
reason for its action.
The burden returns to complainant to show that the agency's reasons
were pretext for discrimination. Complainant argues that four other
mechanics and three supervisors were also involved in the same incident,
however only he received a 14-day suspension. He notes that all of them
had some knowledge that the actuator could possibly be built improperly.
The record of investigation includes a statement from a co-worker (who
was involved in testing the actuator with complainant) that he could
not understand why complainant got suspended when the mechanic who
assembled the actuator did not. See ROI, p. 18. However, evidence of
record indicates that a Caucasian machinist who had the responsibility of
reassembly, did receive a letter of reprimand for careless workmanship.
See ROI, p. 222. According to management, the discipline was less severe
than that of complainant because it was that employee's first offense.
The record also includes a statement from a co-worker who asserted that
management has a pattern of subjecting complainant to greater discipline
than his co-workers. See ROI, p. 17. He also stated that usually no
one will get written up for a long time, and then when complainant gets
written up, management will write up a couple of other people to cover
up what they are doing to complainant. Id. One co-worker stated that
he heard (unidentified) management officials make remarks to the effect
that they are �out to get� complainant or to harass him. Id; see also
ROI, p. 212c-212e. However that co-worker also stated that he has �no
reason to believe it was because of [complainant's] race.� See ROI,
p. 212e. Although several management officials admit to having negative
feelings about complainant, their reasons for such relate to his prior
conduct, including his alleged use of profanity, intoxication at work,
or other reasons related to his behavior at work, or personality.
The Commission is not persuaded by a preponderance of the evidence that
complainant's suspension was motivated by an animus toward him based on
his race or color.
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
April 9, 2002
__________________
Date
1 By letter dated January 4, 2000, complainant
requested a hearing, stating that the agency did not properly notify him
of the process for a hearing. The hearing request was denied on the basis
that complainant had been properly notified and the request was untimely.
The ROI indicates that complainant did receive, and initial, on February
2, 1999, a memorandum informing him that he would have 30 days after
the receipt of the investigative file to request a hearing before an AJ.
See ROI, Tab A.