Harold T. Bigland Petitioner,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
03a00111 (E.E.O.C. Aug. 28, 2000)

03a00111

08-28-2000

Harold T. Bigland Petitioner, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Harold T. Bigland v. Dept. of the Navy

03A00111

August 28, 2000

.

Harold T. Bigland

Petitioner,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Petition No. 03A00111

MSPB No. DC-0752-99-0555-I-1

DECISION

On June 28, 2000, Harold T. Bigland (petitioner) timely filed a petition

with the Equal Employment Opportunity Commission (the Commission) for

review of the Opinion and Order of the Merit Systems Protection Board

(MSPB) issued June 2, 2000, concerning an allegation of discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The petition is governed by the provisions of the

Civil Service Reform Act of 1978 and EEOC Regulations, 29 C.F.R. �1614.303

et seq. The MSPB found that the Department of the Navy (agency) had

not engaged in discrimination as alleged by petitioner. For the reasons

that follow, the Commission concurs with the decision of the MSPB.

ISSUE PRESENTED

The issue presented is whether the Board's determination that petitioner

failed to prove that the agency discriminated against him based on his

race (White) when it removed him from his position of WS-4102-09 Painter

Supervisor constitutes a correct interpretation of the applicable laws,

rules, regulations, and policy directives and is supported by the record

as a whole.

BACKGROUND

The agency removed petitioner from his Painter Supervisor position for

failure to carry out his duties as a supervisor and leaving the work site

without proper permission. Petitioner appealed his removal to the MSPB,

and a hearing was held. The MSPB Administrative Judge (AJ) sustained

the agency's charges against petitioner and upheld the removal.

A review of the record indicates that during the night shift of January

19-20, 1999, petitioner's crew of five painters and a team leader were

to use only grey and red paint in a portion of the bilge area of a ship

that was in dry dock. Petitioner's employees were not cleared to paint

nuclear materials. However, it was discovered that a tank containing

nuclear materials was painted white. The tank containing the nuclear

materials had not been radiologically cleared and approved for painting,

and the tank was painted with the wrong kind of paint. This resulted

in a great deal of additional expense, as well as embarrassment, for

the agency. The record also indicates that on the evening in question,

petitioner and his men were scheduled to work a 12 hour shift. However,

petitioner and his men left after completing only eight hours of work.

With respect to the charge of failing to carry out the duties of a

supervisor, petitioner was accused of failing to monitor the status

of the assignment during the work evolution to ensure work was being

performed in accordance with work instructions and failing to keep his

supervisor informed of job progress and the need to adjust the work

schedule. A third specification, failing to muster employees at the end

of shift was not sustained by the deciding official. The AJ relied on

petitioner's position description and noted that petitioner testified

that he was aware of cost overruns on the bilge painting project

that he was supervising and found petitioner knew the bilge painting

work was running behind schedule and over cost or both. The record

indicates petitioner was familiar with his work site, and knew the

work that needed to be accomplished for the project. Petitioner also

acknowledged that he knew about the tank with the nuclear material and

that it should not be painted. The AJ also noted that none of the other

supervisors testified that they made decisions to cut overtime and send

workers home. The AJ found the testimony of petitioner's supervisor

more credible than that of petitioner on the question of whether he

needed to check with his supervisor before deciding that the night's

work was completed. Testimony indicated that there was additional work

that petitioner's crew could have done. In addressing the failure to

monitor the work of his employees, the AJ found that the fact that a

potentially hazardous mistake occurred indicated that the monitoring was

not effective. Thus, the AJ noted that petitioner could have and should

have monitored the work site more closely at the time in question. As

such, the agency's reasons for removing petitioner were sustained.

In discussing the reasonableness of the penalty, the AJ noted that

although petitioner had more than 28 years of service with the agency,

this was petitioner's fourth offense in the last two years for similar

charges. The other charges involved sloppy workmanship, inattention to

supervisory duties and failing to follow proper work procedures.

With respect to petitioner's discrimination claims, the AJ found that

petitioner generally argued that African-American supervisors were not

disciplined for mistakes made by their workers. However, petitioner did

not provide specific examples and there is no information in the file on

whether the other supervisors had a similar work history. The AJ found

that petitioner did not prevail on his race discrimination claims.

Petitioner filed a petition for review with the full Board. The full

Board denied petitioner's petition for review. Thereafter petitioner

filed a petition to the Commission, but did not present any new

arguments. Rather he includes a copy of his petition to the full Board

and addresses testimony in the record.

ANALYSIS AND FINDINGS

The Commission must determine whether the decision of the Board with

respect to the allegation of discrimination based on race constitutes a

correct interpretation of any applicable law, rule, regulation or policy

directive and is supported by the evidence in the record as a whole.

29 C.F.R. �1614.305(c).

In any proceeding, either administrative or judicial, involving an

allegation of discrimination, it is the burden of the complainant,

petitioner herein, to initially establish that there is some substance

to his or her allegation. Petitioner's claim of disparate treatment is

examined under the tripartite analysis first enunciated in McDonnell

Douglas Corporation v. Green, 411 U.S. 792 (1973). In general, for

petitioner to prevail, he must first establish a prima facie case of

discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. McDonnell

Douglas, 411 U.S. at 802; Cooper v. Federal Reserve Bank of Richmond,

467 U.S. 867, 875 (1984).

The Commission's analysis need not focus on the establishment of

the prima facie case where the agency has articulated a legitimate,

nondiscriminatory reason for its actions. Washington, v. Dept. of the

Navy, EEOC Petition No. 03900056 (May 31, 1990).

Assuming that petitioner established a prima facie case of discrimination,

the Commission finds that the agency has articulated legitimate,

nondiscriminatory reasons for its actions. Petitioner was a Painter

Supervisor. He admitted to knowing that the tank with the nuclear

material should not have been painted. Information in the record from the

employee who painted the tank indicates that it took four hours, and it

was in an area near where the other items were being painted. There is

no real explanation as to why petitioner did not notice the work this

employee was doing. Further, petitioner was aware that the project

was behind schedule and facing cost over runs. The Commission is not

convinced by petitioner's arguments the he should not be responsible

for the mistake of his crew member. Petitioner complained that another

supervisor who was African American had not left a turnover sheet for

the next day's crew and was not disciplined. However, failure to leave a

turnover sheet did not require two weeks delay in a project, additional

costs and embarrassment for the agency, and the potential for even more

damages in terms of health and safety. Petitioner has not shown that

the agency's reasons for its action were a pretext for discrimination.

Based on the foregoing, the Commission concurs with the Board's finding

that petitioner's removal was not the result of unlawful discrimination.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to CONCUR with the final decision

of the MSPB finding no discrimination. The Commission finds that the

Board's decision constitutes a correct interpretation of the laws, rules,

regulations, and policies governing this matter and is supported by the

evidence in the record as a whole.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)

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,

based on the decision of the Merit Systems Protection Board, WITHIN

THIRTY (30) CALENDAR DAYS of 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

August 28, 2000

__________________

Date