01976847
09-16-1999
Clyde W. Kinsey, Jr. Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Clyde W. Kinsey, Jr. )
Appellant, )
) Appeal No. 01976847
v. ) Agency No. DON 96-65923-047
) Hearing No. 140-96-8211X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleged he was discriminated against when his certification
stamp was revoked for 30 days. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a
Recommended Decision (RD) without a hearing, finding no discrimination.
The agency's FAD adopted the AJ's finding of no discrimination. It is
from this decision that appellant now appeals.
The record reveals that during the relevant time, appellant was employed
as a Machine Tool Operator at the agency's Machine, Manufacture and
Component Repair Branch, Naval Aviation Depot, Cherry Point, Havelock
North Carolina.
The record provides that appellant manufactured a �flight critical
item� and applied his certification stamp to the item. Thereafter, the
Quality Evaluator (QE) inspected the item, and determined that it did
not meet the appropriate production standards. Subsequently, appellant
manufactured the same item a second time and applied his certification
stamp. After examining the item, the QE found serious problems with it.
Therefore, he recommended the revocation of appellant's certification
stamp for 30 days, and that appellant be retrained and re-certified
before being granted a certification stamp.
The AJ concluded that appellant failed to establish a prima facie case
of race discrimination. Appellant did not refute the evidence that three
White employees' certification stamps were revoked and returned after
they received additional training. Additionally, the AJ determined that
appellant established a prima facie case of reprisal.
Assuming, arguendo, that appellant established a prima facie case of
race discrimination, along with reprisal, the AJ concluded that the
agency articulated a legitimate non-discriminatory reason for revoking
appellant's certification for 30 days. The evidence revealed that
appellant erred twice in manufacturing the same critical flight element,
which if left unchecked, could have resulted in a possible airplane
crash, or loss of life. Furthermore, the QE was required to prepare a
Corrective Action Report (CAR) for all discrepancies that were critical,
such as appellants'.
The AJ concluded that appellant failed to establish that the agency's
reason for its action was a pretext to mask unlawful discrimination.
Appellant did not provide any evidence that he was discriminated against
when his certification was revoked.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to
present evidence that any of the agency's actions were in retaliation
for appellant's prior EEO activity or were motivated by discriminatory
animus toward appellant's race. We discern no basis to disturb the AJ's
findings of no discrimination which were based on a detailed assessment
of the record and the credibility of the witnesses. See Esquer v. United
States Postal Service, EEOC Request No. 05950096 (September 6, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, after a careful review of
the record, including arguments and evidence not specifically addressed
in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/16/99
DATE Carlton, M. Hadden, Acting Director
Office of Federal Operations