01970963
09-17-1999
Harvey Harris, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Harvey Harris v. Department of the Navy
01970963
September 17, 1999
Harvey Harris, )
Appellant, )
)
v. )
) Appeal No. 01970963
Richard J. Danzig, ) Agency No. 95-65114-002
Secretary, )
Department of the Navy, )
Agency. )
_______________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision (FAD) concerning
his allegation that the agency discriminated against him on the basis
of his race (Black) and in reprisal for participating in protected EEO
activity in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
For the reasons set forth below, we AFFIRM the FAD.
The issue presented is whether appellant proved that he was discriminated
against, as referenced above, when he was denied a lateral transfer to a
WG-3359-11, Industrial Instrument Mechanic position through the Voluntary
Separation Incentive Pay (VSIP) job exchange at the Navy Public Works
Center (PWC) in Pensacola, Florida. Appellant did not provide any new
contentions on appeal.
According to the record, appellant, a WG-3359-11, Industrial Instrument
Mechanic, was one of approximately fourteen employees referred to the PWC
for consideration. In October 1994, A-1, the selecting official, chose
C-1, a Black male with no prior EEO activity, to fill the position.
A-1, the Maintenance Supervisor, testified that, after reviewing each
application, he selected C-1 because of his background in electronics
and his completion of an apprentice program. According to A-1, the
environment at the PWC was changing with regard to the importance
of having experience in the area of electronics. He noted, for
example, the large amount of electronics related equipment that was
being installed on the base. Therefore, according to A-1, management
sought someone with an extensive background in the area of electronics.
Although appellant's application indicated that he had ten years of
electronics experience, C-1's application showed over nineteen years
of such experience. A-1 testified that, at the time of his decision,
he had no knowledge of appellant's, or any other applicant's, race.
This information, we note, was not contained on the application form.
Upon reviewing appellant's application, A-1 testified that he became
aware that he had worked as an EEO representative. He maintained,
however, that this also played no role in his decision to select C-1.
Appellant maintained that he should have been selected for the position
because he was better qualified than C-1. According to appellant, he was
an Industrial Instrument Mechanic seeking the same type of position, while
C-1 was an Aircraft Instrument Mechanic. Appellant also testified that
"ninety percent of [his] duties involved electronics-related work such as
trouble shooting and experience with electronics circuit boards." (ROI
at page 37). Appellant also indicated that, in addition to C-1, C-2,
a White male, was also selected for a VSIP position. According to
appellant, however, C-2 was never placed in a position because the
employee he was going to replace decided to remain at the PWC.
With regard to his allegation of reprisal, appellant, in addition to
mentioning his participation in protected EEO activity, also maintained
that A-2, the Maintenance Department Head and the approving official in
this case, retaliated against him because of an argument that he had,
the previous year, with A-2's wife. Although appellant did not provide
any details regarding the nature of his argument with A-2's wife,
he indicated that it took place in the EEO office, where she worked.
Appellant also maintained that A-2 once questioned another official, D-1,
about a confrontation that appellant allegedly had with A-2's secretary.
According to appellant, this was also evidence of reprisal by A-2.
A-2 testified that: (1) he did not review anyone's application; therefore,
he was unaware that appellant had ever engaged in protected EEO activity;
(2) he and his wife do not discuss their jobs at home; therefore, he was
unaware of her altercation with appellant and (3) he did tell D-1 that
appellant once called his office and was "very demanding and abrasive
with his secretary."<1> (ROI at pages 50-51).
The Commission has reviewed the record and finds that the FAD addressed
the facts and correctly applied the appropriate regulations, policies
and laws. See 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.), affirmed, 545 F.2d 222 (1st Cir. 1976).
Employers generally have broad discretion to set policies and carry
out personnel decisions, and should not be second-guessed by reviewing
authorities absent evidence of unlawful motivation. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). The record
shows that appellant and C-1, among others, met the basic qualifications
of the position and were referred to A-1 for further consideration;
however, the decisive factor in the selection process was C-1's greater
electronics experience and his completion of an apprentice program.
We find that appellant failed to demonstrate that the agency's legitimate,
nondiscriminatory reasons for not selecting him were a pretext for
race or reprisal discrimination. Other than his bare assertion that
his nonselection was based on a desire to discriminate against him,
appellant offered no persuasive evidence that these matters played any
role in his nonselection.<2> We note, among other things, that the record
indicates that A-1 was not aware of appellant's, or any other applicant's,
race when he selected C-1, who, like appellant, is a Black male.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
September 17, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1A-2 did not remember how the topic arose, but he acknowledged that it
was possible that D-1 mentioned appellant's name in relation to a job
request. According to A-2, "I frequently had discussions with [D-1]
about employees he knew were looking for a job." (ROI at page 51).
2A prima facie case of reprisal is established by showing that: (1)
an employee engaged in protected EEO related activity; (2) the employer
was aware of the protected activity; (3) the employee was subsequently
subjected to an adverse action; and (4) the adverse action followed
the protected activity within such a period of time that retaliatory
motivation may be inferred. Manoharan v. Columbia University College of
Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould,
808 F.2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783,
790, (D.C. Cir. 1984). In the present case, we find that, with regard
to appellant's allegation that A-2 retaliated against him because of
his confrontations with A-2's wife and secretary, appellant failed to
establish a prima facie case of reprisal. We note that engaging in a
confrontation, with another employee, is not a protected EEO activity.