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.