Brian Craig, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 28, 2000
05a00921 (E.E.O.C. Sep. 28, 2000)

05a00921

09-28-2000

Brian Craig, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Brian Craig v. Department of the Navy

05A00921

September 28, 2000

.

Brian Craig,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Request No. 05A00921

Appeal No. 01993825

Agency No. 9800166002

DENIAL OF REQUEST FOR RECONSIDERATION

Brian Craig (complainant) initiated a request to the Equal Employment

Opportunity Commission (EEOC or Commission) to reconsider the decision

in Brian Craig v. Department of the Navy, EEOC Appeal No. 01993825

(May 26, 2000).<1> EEOC Regulations provide that the Commission may,

in its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request.

On January 27, 1998, complainant filed a formal complaint alleging

that he was subjected to discrimination on the basis of his race

(African-American) and sex (male), and subjected to retaliation due to

his prior protected activity when:

he was moved from the Comptroller Department into the Supply Department,

effective June 23, 1996;

(2) he did not receive the training required to perform his job duties,

while a White female did receive the training complainant requested;

(3) he was initially offered a full-time position, but later he found

that the hours had been cut back to a part-time position and he was

told that if he did not accept it, he would be taken off of the Priority

Placement Program list;

(4) he was forced to move back into the Comptroller Department to

perform duties in which he had no prior training.

The record reveals that during the relevant time, complainant was

employed as an Accounting Technician in the Accounting Division, first

in the Comptroller Department, and then in the Supply Department, of

the agency's Naval Air Facility Washington at Andrews Air Force Base,

Maryland. Believing he was a victim of discrimination, complainant

sought EEO counseling and subsequently filed a formal complaint on

January 27, 1998. At the conclusion of the investigation, complainant was

informed of his right to request a hearing before an EEOC Administrative

Judge or, alternatively, to receive a final decision by the agency.

Complainant requested that the agency issue a final decision.

In its FAD, the agency first found that while complainant established

a prima facie case of retaliation in regard to claim nos. 1, 2, and

4, he failed to do in regard to claim no. 3 because he acknowledged

in his affidavit that he did not think this action was due to his

prior activity. The agency also determined, based on statements in

complainant's affidavit, that claim 4 was based solely on retaliation.

The agency went on to find that management articulated legitimate

non-discriminatory reasons for its action, which complainant failed to

establish were a pretext for discrimination.

In his original appeal, complainant made some corrections to his

affidavit. He argued, for example, that all of the alleged adverse

actions were motivated by his race and sex, as well as his prior protected

activity. He did not, however, raise any new contentions. Although

complainant requested review of the prior decision, he did not submit

any statement explaining his reasons for doing so. He did not allege

that the prior decision involved a clearly erroneous interpretation of

material fact or law, or that the prior decision will have a substantial

impact on the policies, practices or operations of the agency. Thus, he

failed to demonstrate that his request meets either of the reconsideration

criterion.

Moreover, applying the standards set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation

for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,

545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal

cases), the prior decision correctly determined that the agency's

finding of no discrimination was proper. Because the agency articulated

legitimate nondiscriminatory reasons for its actions, we will assume for

the sake of this discussion that complainant established a prima facie

case of race, sex, and reprisal discrimination in regard to all of his

claims. See United States Postal Service Board of Governors v. Aikens,

460 U.S. 711 (1983); Valencia v. United States Postal Service, EEOC

Petition No. 03990094 (March 16, 2000). Even making this assumption,

however, we find that complainant failed to establish he was subjected to

discrimination, as he failed to establish that the agency's explanations

were a pretext for discrimination.

In regard to claim nos. 1 and 4, the agency noted that it originally

transferred complainant's position from the Comptroller Department to

the Supply Department because his job duties were more appropriately

supervised by those in the Supply Department. Although complainant was

eventually transferred back to the Comptroller Department, he offered no

evidence to suggest that either move was motivated by his race or sex.

While the proximity in time between the transfer and his prior protected

activity raises an inference of reprisal discrimination, complainant

failed to sufficiently rebut the agency's explanation. Thus, complainant

failed to establish that his transfers from or back to the Comptroller

Department were motivated by a discriminatory animus towards his race,

sex, or prior protected activity.

Furthermore, the agency stated that complainant received the necessary

training, pointing to a training session he received in its Willow Grove

facility and on-the-job training. The agency explained that the White

female (CW1) named by complainant as receiving more training than he was

sent to New Orleans to attend a training program complainant had requested

because CW1 recently received a new function and had no background in it,

whereas complainant was better informed about the duties of his position.

The agency also noted that complainant resigned from the agency within

a month of his transfer back to the Comptroller Department, before he

could be scheduled for additional training. Complainant's supervisor

during these weeks testified that she was in training herself when

complainant was transferred and had not yet had time to schedule the

training he needed. Although complainant contended that the training he

received was not sufficient and there is some indication in the record

that complainant did need more training, there is insufficient evidence to

establish that he was denied training due to a discriminatory motivation.

Turning to the remaining claim, complainant failed to establish that

he was originally offered a full-time position and was subjected to

discrimination when he later learned that the position was part-time.

Several agency witnesses testified that the position had been changed

from a full-time to a part-time one long before complainant was selected

to fill it and that the person whom complainant was replacing worked

part-time. Complainant offered no evidence that the agency's action in

this regard was motivated by discriminatory animus.

Accordingly, the prior decision correctly affirmed the agency's finding of

no discrimination. As complainant's request for reconsideration failed

to meet the criteria of 29 C.F.R. � 1614.405(b), his request is denied.

The decision in EEOC Appeal No. 01975896 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration.

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

September 28, 2000

__________________

Date

1On 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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.