01974646
03-01-1999
David L. Dollison, Sr., )
Henry Jacobs, Sr., David L. Dollison, Sr., Geronimo C. Cruz v.
Department of the Navy
01974682
March 1, 1999
Henry Jacobs, Sr., )
David L. Dollison, Sr., )
Geronimo C. Cruz, ) Appeal Nos. 01974682
Appellants, ) 01974572
) 01974646
v. )
) Agency Nos. 94-65888-042
Richard J. Danzig, ) 94-65888-038
Secretary, ) 94-65888-049
Department of the Navy, )
Agency. ) Hearing Nos. 340-95-X3410
) 340-95-X3411
______________________________) 340-95-X3412
DECISION
This appeal pertains to the consolidated complaints of three individuals
who timely appealed the final decisions of the Department of the
Navy (agency), concerning their complaints of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination
in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. � 621 et seq.
The appeals are consolidated and accepted by the Commission in accordance
with the provisions of EEOC Order No. 960.001.
Appellant Henry Jacobs (HJ)
Appellant HJ filed a formal EEO complaint alleging discrimination on the
bases of his race (Black) and color (black), when, in March, 1994, he was
rated ineligible to transfer with the S3 Aircraft Line to Naval Aviation
Depot (NADEP), North Island. Following the agency's investigation,
an EEOC administrative judge (AJ) issued a recommended decision of no
discrimination. The agency thereafter adopted the AJ's findings and
recommendation. It is from this decision that appellant HJ now appeals.
Appellant David L. Dollison (DD)
Appellant DD filed a formal EEO complaint alleging discrimination on the
bases of his of race (Black), color (black), and age (DOB 4/24/52) when,
in March, 1994, he was rated ineligible to transfer with the S3 Aircraft
Line to NADEP, North Island. Following the agency's investigation,
an EEOC administrative judge (AJ) issued a recommended decision of no
discrimination. The agency thereafter adopted the AJ's findings and
recommendation. It is from this decision that appellant DD now appeals.
Appellant Geronimo C. Cruz (GC)
Appellant GC filed a formal EEO complaint alleging discrimination
on the bases of his race (Asian), color (brown), and national origin
(Filipino) when, in March, 1994, he was rated ineligible to transfer with
the S3 Aircraft Line to NADEP, North Island. Following the agency's
investigation, an EEOC administrative judge (AJ) issued a recommended
decision of no discrimination. The agency thereafter adopted the AJ's
findings and recommendation. It is from this decision that appellant
GC now appeals.
The undisputed record reveals that all three appellants were
long time employees at NADEP Alameda which is located near San
Francisco, California. In September, 1993, the NADEP Alameda closure
became official. While the S3 Aircraft operations were to continue,
officials had not yet determined the location to which the program would
be transferred. NADEP North Island expressed interest in accommodating
the S3 Aircraft program at its facilities in San Diego, California.
However, at that point in time, no specific procedure had been defined
as to how the employees would be transferred. The record reveals that
negotiations commenced between NADEP Alameda and NADEP North Island
and by December, 1993, the two facilities agreed on a procedure to
identify people for transfer. On January 7, 1994, the then NADEP
Alameda Commanding Officer (CO) issued a memorandum to all NADEP
Alameda employees which set forth the eligibility requirements for
reassignment to NADEP North Island. The memorandum included a list of
positions needed to "support the transfer of the S3 Aircraft Program"
from NADEP Alameda to NADEP North Island. In addition, the memorandum
explained that in order to "move with the work," an applicant must be
eligible for reassignment, which included the requirement that the grade
level of an employee match the grade level of the transferred position.
The memorandum also explained that "most positions require recent S3
experience to ensure a seamless transition. . . . EMPLOYEES MUST HAVE
AT LEAST 30 DAYS EXPERIENCE WORKING IN THE S3 AIRCRAFT PROGRAM WITHIN
THE LAST YEAR." The record further revealed that since the transfer to
NADEP North Island was a "transfer of work," there were no competitive
procedures required by federal regulations and the reassignment of NADEP
Alameda employees was a non-competitive program.
All three appellants submitted applications for transfer to NADEP North
Island and explained their respective experience with the S3 program.
During the relevant period, Appellant HJ was an Aircraft Overhaul and
Repair Foreman, WS-8801-10, who worked in Code 97624. Appellant HJ
explained that had more than 30 days experience on the S3 program from
August, 1993 through October, 1993. During the relevant period, Appellant
DD was a Sheet Metal Mechanic (Aircraft), WG-3806-10 who worked in Code
93324. Appellant DD explained that he worked in the Metal Manufacturing
Shop on A6 parts for the S3 line. During the relevant time period,
Appellant GC was an Overhaul and Repair General Foreman, WS-8801-15 who
worked in Code 97620. Appellant GC explained that between January, 1993
and January, 1994, he was the Aircraft Overhaul and Repair General Foreman
on the swing shift which supervised work being performed on the S3.
All three appellants asserted that they had S3 program experience.
The record revealed that the agency's interpretation of the required
S3 experience meant S3 line experience rather than general S3 program
experience. The Production Superintendent (PS) testified that the
agency's use of the term "S3 program" in its January 7, 1994 memorandum
was defined as actually working on the S3 line doing the standard depot
level maintenance process on the aircraft. In addition, the Director
of Personnel Operations and Policy Division (PO) testified that she
understood that the S3 Aircraft Program for purposes of the transfer
was defined as the S3 line or S3 Maintenance Division (the Code 959
division).
PS explained that Appellant HJ did not qualify for the transfer
because there was no direct correlation between line supervision and
Appellant HJ's largely administrative functions in field team operations.
The record revealed that appellant HJ did not supervise the actual work
done on the S3 aircraft.
PS further testified that the feeder shops where appellant DD worked
were not part of the S3 line. In addition, the record reveals that the
Field Team Office where appellant DD was the supervisor was not part of
the S3 Aircraft Maintenance Division.
With respect to appellant GC, the record reveals that his General Foreman
position was not part of the S3 Aircraft Maintenance Division, although
he did have responsibility for flight test, a small portion of the S3
line on swing shift.
Disparate Treatment
The AJ found that each appellant failed to present a prima facie case
of discrimination. Specifically, the AJ found that appellants were
not eligible for reassignment to NADEP North Island in that the agency
officials who reviewed their response form did not find that the cited
experience met the required S3 experience. While the record reveals
that appellants interpreted the January 7, 1994 memorandum in a manner
which would include appellants' experience, none of the appellants
presented specific probative evidence which disputes the agency's stated
interpretation; the requirement of S3 line experience.
The AJ also found that the individuals cited by appellants were
not similarly situated to appellants. Appellant HJ cited several
individuals as comparators. The AJ found none of the individuals to be
similarly situated to appellant HJ, because each comparator either had
already been working in Code 959 or the S3 Maintenance Division (ie. S3
line experience) or they occupied different positions with different
classification series from appellant HJ.
Appellant DD also cited several (younger and older) Caucasian employees
who were offered reassignments to NADEP North Island, some of whom
occupied the same position as he and some of whom did not. With respect
to those individuals who occupied different positions, classification
series and grade levels, the record reveals that all individuals
were already working in Code 959 or the S3 Maintenance Division.
Accordingly the AJ did not consider these individuals similarly situated
to appellant DD. With respect to those individuals who occupied the
same position as appellant DD, the record reveals that each individual
was also already working in Code 959 or the S3 Maintenance Division,
except for two individuals. One individual cited by appellant who
did not work in Code 959, but in Code 93523, was also rejected for
reassignment to NADEP North Island. The other individual, C1, occupied
the same position as appellant and also did not work in Code 959 or
the S3 Maintenance Division. However, the AJ determined that C1 was
not similarly situated to appellant since C1: (1) did not work in the
feeder shop with appellant; and (2) had actual hands-on experience on
the S3 line during the relevant period of time.
Appellant GC identified one individual (Caucasian) who occupied the
same grade and classification series as Appellant GC did. However,
the individual identified by Appellant GC encumbered his position in
Code 959 or the S3 Maintenance Division, which Appellant GC did not.
Accordingly, the AJ determined that appellant failed to identify a
similarly situated individual, outside his protected class that was
treated more favorably than appellant GC.
In addition to finding that appellants failed to establish a prima facie
case of discrimination, the AJ determined that the agency articulated a
legitimate, non-discriminatory reason for its action. The AJ determined
that both agency witnesses credibly testified that appellants were
rated "ineligible" under the procedures established for reassignment to
NADEP North Island (i.e. appellants did not meet the S3 line experience
requirements). In addition, appellants presented no specific probative
evidence which established that the agency's rationale for its employment
action was not worthy of credence or that the agency held discriminatory
motives.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision properly analyzed appellants'
complaints as disparate treatment claims. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253-56 (1981); Loeb v. Textron, Inc., 660 F.2d 1003 (1st
Cir. 1979). The Commission concludes that, in all material respects,
the AJ accurately set forth the facts giving rise to each complaint and
the law applicable to this case. We further find that the AJ correctly
determined that appellants failed to establish discrimination based on
race, color, national origin, and age.
Disparate Impact
In addition to claiming disparate treatment, the appellants assert
that the requirement for reassignment to NADEP North Island with the S3
Aircraft Program constitutes an agency policy that had an adverse impact
on the appellants based on race.
The record reveals that of those individuals who occupied the same
position as Appellant HJ, one Black and four Caucasian employees were
offered reassignment to NADEP North Island while one Caucasian employee
and one Hispanic employee were denied reassignment. The record reveals
that of the individuals who occupied the same position as Appellant DD,
three Asian, two Hispanic, seven Caucasian, and two Black employees
were offered reassignment to NADEP North Island while four Asian, five
Hispanic, nine Caucasian, and six Black employees were denied reassignment
to NADEP North Island. The record reveals that appellant CG failed
to present any specific probative statistical evidence. The record
also reveals that, overall, there were 201 employees who were rejected
for reassignment to NADEP North Island with the S3 Aircraft Program:
35 Asians, 26 Hispanics, 75 Caucasians, one race unknown, and 64 Blacks.
The AJ determined that appellants did not present any evidence,
statistical or otherwise, establishing that the eligibility requirements
for reassignment to NADEP North Island with the S3 Aircraft Program had
an adverse impact on employees of either appellant HJ, appellant DD,
or appellant GC's race. Rather, the AJ determined that the record
indicated that the agency's eligibility requirement impacted equally
on all employees who applied, regardless of their race or membership in
any other statutorily protected category.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision properly analyzed appellants'
disparate impact claim. See Griggs v. Duke Power Co., 422 U.S. 405
(1975); Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988).
The Commission concludes that, in all material respects, the AJ accurately
set forth the facts giving rise to each complaint and the law applicable
to this case. We further find that the AJ correctly determined that
appellants failed to establish discrimination based on race.
Mixed Motive
Appellants also raised a claim of mixed motive discrimination. The AJ
found no direct evidence of discrimination. After a careful review of the
entire record, including arguments and evidence not specifically addressed
in this decision, the Commission finds that the AJ's recommended decision
properly analyzed appellants' mixed motive claim. See Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989), as modified by, the Civil Rights Act
(CRA) of 1991, Pub. L. No. 102-166, 105 Stat. 107 (1991) (establishing
that agency may not avoid liability by showing that it would have made
the same decision even absent the unlawful discrimination); EEOC Revised
Enforcement Guidance on Recent Developments in Disparate Treatment
Theory, No. N-915.002, at 16; Wilson v. firestone Tire & Rubber Co.,
932 F.2d 510, 514 (6th Cir. 1991). The Commission concludes that, in all
material respects, the AJ accurately set forth the facts giving rise to
each claim of mixed motive discrimination and correctly determined that
appellants failed to present such a claim.
Since appellants offered no additional persuasive evidence or argument
in support of their claims on appeal, we discern no legal basis to
reverse the agency's finding of no discrimination. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final decision finding no discrimination on all claims.
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:
____March 1, 1999__ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations