01975422
01-05-2000
Michelle A. Ball, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Michelle A. Ball v. Department of the Navy
01975422
January 5, 2000
Michelle A. Ball, )
Complainant, )
) Appeal No. 01975422
v. ) Agency No. DON 95-00251-061
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of sex (female), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges
she was discriminated against when the Apprentice Coordinator did not
assign her to assignments aboard the "Texas" Surface Ship, the "Ohio"
Nuclear Submarine and the "Carl Vinson" Aircraft Carrier. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a Welder, WG-3703-10, at the agency's Puget Sound Naval
Shipyard in Bremerton, Washington. Complainant alleged that she was
denied pipe training opportunities and out of position welding aboard the
aforementioned vessels which prohibited her from achieving a promotion to
the WG-11 level. Instead, complainant contended that she basically was
assigned "fire watch"<2> assignments, instead of the welding assignments
the males received. She testified that she was not geared towards being
a star welder and was told that she needed to keep up with the men.
Complainant also alleged that the Apprentice Coordinator (male) did not
assign her to these vessels as he wanted to keep her close by in order
so that he could socialize with her. In support of this contention,
she averred that on June 21, 1995, while returning from lunch with the
Apprentice Coordinator, she told him that she hardly had a chance to
see him as she was out on Dry Dock 6. In response, he told her that
was the reason he never assigned her there because he would not get a
chance to see her.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on September 11, 1995.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The FAD concluded that complainant established a prima facie case of sex
discrimination when she demonstrated that similarly situated employees
not in her protected classes were treated differently than she was
under similar circumstances. However, the agency also concluded that
management officials articulated legitimate, nondiscriminatory reasons
for its actions. The Apprentice Coordinator stated that he was not
responsible for designating the assignments to the apprentices; rather,
he merely suggested to the Foreman or Resource Manager what areas an
apprentice needed training. Thereafter, the Foreman or Resource Manager
was responsible for making the assignments.
The Apprentice Coordinator denied making the statement alleged by
complainant, and stated that complainant was not assigned to the
aforementioned carriers because she failed the copper nickel test.
Furthermore, complainant never informed him that she had only been
assigned fire watch duties. He maintains that had he known, he would
have let the foreman know and she would not have been assigned fire
watch duties.
The Resource Manager averred that the Apprentice Coordinator only
identified the skills the apprentice needed. He stated that the
Apprentice Coordinator did not attempt to influence him in any way
regarding where complainant should be assigned. The Resource Manager
also averred that the males complainant identified had been assigned
to the "Texas" "Ohio" and "Carl Vinson" because they had their pipe
qualifications, whereas complainant did not because she failed her test.
The agency concluded that complainant failed to prove that the agency's
reasons for its actions were a pretext for discrimination. The agency
also noted in its FAD that complainant finished her apprenticeship class.
Neither complainant nor the agency make any contentions on appeal.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission finds that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
Although we find that the Apprentice Coordinator did have some measure of
influence on where the apprentices were assigned, and that they went out
to lunch together, we do not agree with complainant that she has proven
that she was denied pipe welding opportunities because of her gender.
In reaching this conclusion, we note that management officials all stated
in their affidavits that complainant was not assigned pipe work due to her
failure to pass the copper nickel test and VT test. Although records do
indicate that complainant did less pipe work than her male comparatives,
and she worked more fire watch duty than the males, she has not shown that
this was based on her gender. Instead, the preponderance of the evidence
reveals that one needed to pass the tests in order to work on the pipe
crews aboard the vessels. Complainant has not presented evidence that
men were allowed to work on the vessels without passing the necessary
pipe qualifications. We also note that complainant's witness (female),
who did work on the vessels, averred that another male was in the same
predicament as complainant. She stated that the male was denied welding
opportunities because he did not pass the copper nickel qualifications.
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 (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (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:
January 5, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2This assignment involves an individual who watches the welder in order
to ensure that no sparks ignite a fire.