Darius G.,1 Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 17, 2017

0120152593 (E.E.O.C. Mar. 17, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Darius G.,1
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120152593

Agency No. 126592300809

DECISION

On July 16, 2015, Complainant filed an appeal from the Agency’s June 26, 2015, final
decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the
Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a WG-10 Senior
Aircraft Sheet Metal Mechanic at the Agency’s Fleet Readiness Center (FRC) East facility in
Cherry Point, North Carolina. His position, which was the highest and most senior non-
supervisory Sheet Metal Mechanic at FRC East, required Complainant to “work with greater
independence and required [him] to make more judgments and decisions regarding
methods/procedures for completing assignments.” Complainant filed an EEO complaint on
February 7, 2012, alleging that the Agency discriminated against him on the basis of sex
(male) when it removed him from his mechanic position. Complainant alleged that his removal
from his mechanic position was discriminatory because the Agency did not terminate two
female mechanics who performed poorly.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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The Agency stated that it terminated Complainant because he had violated the terms of his Last
Chance Agreement (LCA). In December 2009, the Agency issued a notice of proposed
removal to Complainant because of his performance issues and poor work habits. After
considering Complainant’s reply to the notice, the Agency issued the LCA. In signing the
LCA, Complainant agreed, among to: “maintain satisfactory conduct [and] good work
habits;” “comply with all instructions issued to him by his supervisors (or his/her relief
designee), work leaders, and mentors;” and “not commit any act of misconduct.” The LCA
also placed Complainant on probation for five years and stated that noncompliance with the
LCA might result in the initiation of a removal action.

On July 15, 2011, Complainant drilled into a wiring bundle on an aircraft that he was working
on, costing the government $31,553 in order to perform the needed repairs. Complainant
admitted that he could have prevented his mistake if he had used drill stops. On October 14,
2011, the Agency terminated Complainant.

In November 2011, Complainant filed an appeal challenging his termination with the Merit
System Protection Board (MSPB). Complainant alleged that the Agency acted in bad faith by
removing him from his position under the LCA and that he had not knowingly or voluntarily
signed the LCA. On December 14, 2011, MSPB dismissed the appeal for lack of jurisdiction.

The Agency dismissed Complainant’s EEO complaint on procedural grounds. Complainant
appealed, and in EEOC Appeal No. 0120121768 (June 28, 2012), the Commission reversed
the Agency’s dismissal. In EEOC Request No. 0520120529 (December 11, 2012), the
Commission denied the Agency’s request for reconsideration. In EEOC Request No.
0520130461 (November 22, 2013), the Commission on its own motion reopened and vacated
the previous decision and denied the Agency’s request again.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but
subsequently withdrew his request. The Agency issued a final decision finding no
discrimination.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).
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On appeal, the Agency maintains that Complainant’s costly error along with his lengthy history
of performance issues and disciplinary actions led to his removal. Record evidence shows that
the Agency’s reason is legitimate because Complainant acknowledges that he could have
prevented the accident if he had used the drill stops and the LCA he signed indicated that
unsatisfactory performance or misconduct may result in removal. The two female comparatives
named by Complainant are not similarly situated because they were not on a LCA at the time
of their performance issues. The Commission finds that Complainant failed to show that his
termination was motivated by discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 17, 2017
Date