01a60240
03-06-2006
Ralph D. Ransom, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Ralph D. Ransom v. Department of the Navy
01A60240
March 6, 2006
.
Ralph D. Ransom,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A60240
Agency No. 04-65956-001
Hearing No. 100-2004-00980X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during relevant time complainant was employed
as a Sales Clerk, NF 2091-1, at the agency's Navy Exchange Detachment
in London, England. On November 24, 2003, complainant filed a formal
complaint claiming that the agency discriminated against him on the
bases of race (African-American) and color (black) when:
on August 6, 2003, he was terminated from his flexible employment.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Thereafter, the agency filed a motion for
summary judgment.<1>
On August 10, 2005, the AJ granted the agency's motion for a decision
without a hearing, finding no discrimination. The AJ determined that
complainant failed to produce evidence establishing any genuine issues
of material fact sufficient that the agency's articulated reasons were
a pretext for discriminatory animus.<2>
The record reflects that the Branch Exchange Manager (Manager) stated that
on July 30, 2003, she approached the customer services area and observed
complainant ring up a purchase of two bottles of brandy for a customer she
knew to be a retiree "who is not eligible to have a ration card and is not
authorized purchaser." The Manager further stated that she knew that the
retiree customer "because we used to work together at another location."
The Manager stated that she immediately notified a named agency official.
The Manager stated that "the policy is military personnel get 4 rations
for alcoholic beverages a month; dependents get 2, civilians get 4
rations a month, people on TDY get their orders stamped and get rations
for the length of their stay and retirees get no rations." Furthermore,
the Manager stated that complainant received formal training "regarding
ration cards, restrictions, patron identification procedures and the
sale of alcoholic beverages at his indoctrination and had completed a
refresher training class just 12 days before the alleged incident."
The record further reflects that the General Manager stated that she was
the deciding official to terminate complainant from agency employment for
failure to follow proper procedures. Specifically, the General Manager
stated that complainant did not follow the proper procedures when he
sold alcoholic beverages to a retiree in violation of COMNAVACTUKINST
Instruction 10140.1. The General Manager stated that complainant
received training on November 27, 2000 and July 18, 2003 regarding ration
cards, restrictions and patron identification procedures. Furthermore,
the General Manager stated that complainant's race and color were not
factors in her determination to terminate him from agency employment.
The record contains a copy of the agency's COMNAVACTUK Instruction
10140.IN. Therein, section 11 under Military Retiree's Limited
Privilege Program provides that "purchases made by military retirees
will be restricted to non-rationed items, and will exclude all alcoholic
beverages, including beer, wines, etc."
The record also contains a copy of attendance sheet for a training
session held on July 18, 2003 concerning ration cards and identification.
Therein, the list contains complainant's signature indicating that he
attended the July 18, 2003 training.
On September 26, 2005, the agency issued a final order implementing the
AJ's decision finding no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
non-discriminatory reason for its actions as discussed above. Complainant
has not shown that the agency's articulated reasons were a pretext for
discrimination. The agency's final order implementing the AJ's finding
of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 6, 2006
__________________
Date
1The record does not contain the agency's motion for summary judgment.
2The AJ noted that complainant never formally requested that the
instant complaint be amended to include an issue relating to the agency
subsequently debarring him from naval facilities. The AJ nonetheless
found that this matter was before him pursuant to a request for guidance
from the agency. The AJ found that the debarment claim should not be
consolidated with the instant complaint, because the Commission does not
have jurisdiction to adjudicate access to military facilities when such
access is not related to a term, condition, or privilege of employment.
The AJ found that in the present case, complainant was debarred after
his termination from agency employment and therefore does not involve
complainant's prior agency employment. As the record does not reflect
complainant requested that this matter be amended to the instant
complaint, the Commission will not address this issue further.