0120071791
03-13-2009
Bruce E. Smith, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Bruce E. Smith,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120071791
Agency No. 06-40085-00153
DECISION
Complainant filed an appeal with this Commission from the January 11, 2007
agency decision finding no discrimination. Complainant alleges 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. Specifically,
complainant alleged that the agency discriminated against him on the
basis of reprisal for prior protected EEO activity when on November 14,
2005, his supervisor informed him that a job assignment for which he
was most qualified was given to two employees who were not qualified.
The record reveals that complainant worked for the agency as a Facilities
Management Specialist. The record reveals further that complainant
performed electrical inspections for the agency at various sites and
had done so for many years. The record reveals also that complainant
had been an electrician at least since 1973. The record reveals that
in October 2005, complainant was not chosen to conduct an electrical
inspection at Cherry Point, North Carolina and that instead two other
employees (Persons A and B), who were not electrical inspectors, were
assigned to the inspection team. The record reveals that complainant
had worked previously at Cherry Point performing electrical inspections.
The record reveals further that Persons A and B's experience had been
that of structural inspectors, but it appears they were working as
Project Managers at the time of the Cherry Point assignment in dispute.
The record reveals that complainant had engaged in EEO activity previous
to the instant complaint against his supervisor, who was a Division
Director and Supervisory Architect (S-1).
To prevail in a disparate treatment claim alleging reprisal, the
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The complainant must initially establish a prima facie case
by demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular
case. McDonnell Douglas, 411 U.S. at 804 n. 14. 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). To ultimately prevail, the complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993). In applying the disparate treatment analysis of McDonnell
Douglas Corp., the prima facie inquiry may be dispensed where the agency
has articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
Because this is an appeal from a decision issued without a hearing,
the agency's decision is subject to a de novo review by the Commission.
29 C.F.R. � 1614.405(a). Upon review, the Commission finds that the
agency did not retaliate against complainant when he was not selected
for the Cherry Point assignment. S-1 stated that for the assignment in
question there had been a shift in the way the Activity did business and
that it was attempting to do a visual inspection rather than a hands-on
inspection and that there was no need for an electrical inspector, such
as complainant. S-1 stated that Persons A and B were to contact S-1 if
there was an electrical inspection they could not perform. It is not
enough for complainant to show that the reason given for a job action
is not just, or fair, or sensible, absent a discriminatory motive.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
March 13, 2009
__________________
Date
4
0120071791
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013