Bobby Williams, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, (United States Marine Corps), Agency.

Equal Employment Opportunity CommissionJan 14, 2000
01972264 (E.E.O.C. Jan. 14, 2000)

01972264

01-14-2000

Bobby Williams, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, (United States Marine Corps), Agency.


Bobby Williams v. Department of the Navy

01972264

January 14, 2000

Bobby Williams,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

(United States Marine Corps),

Agency.

Appeal No. 01972264

Agency No. 94-67001-002

94-67001-010

Hearing No. 140-94-8073X

140-94-8092X

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concluding that the agency did not discriminate against him in violation

of Title VII of the Civil Rights Act of 1964, 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.<1> Complainant asserted that

he was discriminated against on the bases of race (Black), color (black),

sex (male), age (DOB: March 1, 1941), and reprisal (prior EEO activity),

in two formal EEO complaints (Agency No. 94-67001-002/complaint 1, dated

October 4, 1993 and Agency No. 94-67001-010/complaint 2, dated December

15, 1993).

In complaint 1, complainant alleged that: (1) he received insubordination

from the employees under his supervision, which was condoned by his

supervisor; (2) his employees continually bypassed him and reported to his

supervisor; (3) his supervisor continually bypassed him by instructing

the employees under his supervision; and, (4) he was suspended from his

position for fourteen days based on reprisal for prior EEO activity. In

complaint 2, complainant alleged that he was terminated from employment

as a result of the aforementioned discrimination. The Commission hereby

accepts the appeal in accordance with EEOC Order No. 960.001. For the

reasons that follow, the FAD is AFFIRMED.

At the time of the alleged discriminatory events, complainant was employed

as a Supervisory Management Specialist at the agency's clothing store

warehouse, United States Marine Corps Base, Camp Lejeune, North Carolina.

Believing that he was the victim of discrimination, complainant sought

EEO counseling and, thereafter, filed the formal EEO complaints.

The agency accepted the complaints for investigation and complied with

all of our procedural and regulatory prerequisites. Subsequently,

complainant requested a hearing before an EEOC Administrative Judge

(AJ), who consolidated the complaints and held the hearing on November

29 and 30, 1994. Subsequently, the AJ issued a bench decision (RD)

recommending a finding of no discrimination. After the agency received

the hearing transcript and RD in October 1996, the agency adopted the

RD, with a slight modification, and issued a FAD, dated December 12,

1996, finding no discrimination.<2> It is from this agency decision

that complainant now appeals. No contentions were submitted on appeal.

The investigative record reveals that complainant offered little more

than bald assertions to substantiate claims 1, 2 and 3 in complaint 1.

While complainant's claim related to insubordination may have applied to

one of his subordinates (SB1), with whom complainant became involved in

a physical altercation, the record does not support a claim that any

insubordination was condoned by his supervisor. The record further

reveals that complainant's subordinates reported to complainant's

supervisor when complainant had not yet arrived at work. Furthermore,

while there is evidence that on one occasion one of complainant's

subordinates may have been performing duties for complainant's

supervisor when he should have been working according to the direction of

complainant, there is no evidence that this occurred on an ongoing basis.

The record is clear that complainant was suspended, and ultimately

removed, because he became involved in physical altercations with SB1,

as well as an additional subordinate.

In his RD, the AJ concluded that complainant failed to establish a prima

facie case of race, color, sex or age discrimination. In this regard,

the AJ reasoned that complainant failed to show, with the exception of

SB1, that there was any insubordination on the part of his employees.

Moreover, complainant failed to show that his supervisor condoned any

insubordination on the part of any of the employees under complainant's

charge. The AJ further concluded that while complainant established

a prima facie case of reprisal discrimination, he failed to rebut

the agency's articulated legitimate, nondiscriminatory reason for its

actions. Complainant failed to show that the agency's explanation, that

he had been suspended and terminated because he assaulted two employees,

was pretextual.

After careful review of the entire record, and arguments and evidence

not specifically addressed in this decision, the Commission finds that

the AJ's RD, as modified by the FAD, presented the relevant facts,

and properly analyzed the appropriate regulations, policies and laws.

The Commission discerns no basis to disturb the AJ's recommendation or

the agency's finding. Accordingly, the FAD is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

January 14, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2The FAD noted that the AJ's conclusion that all of the actors involved

were male was incorrect. The FAD further noted that while the manager

and assistant manager were female, this inadvertence did not alter the

AJ's ultimate conclusion that complainant had not been discriminated

against based on sex.