0120110316
02-03-2012
Reginald B. Draughn, Complainant, v. Gary Locke, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
Reginald B. Draughn,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120110316
Hearing No. 520-2009-00052X
Agency No. 085400098
DECISION
On August 23, 2010, Complainant filed an appeal from the Agency's June 29, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Second Cook with the Ship Delaware II, part of the National Marine Fisheries Service. The record reveals Complainant was hired subject to a one year trial period.
On April 17, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. effective March 13, 2008, his excepted service appointment as Second Cook was terminated; and
2. he did not receive payment of an award he received while serving as Acting Chief Steward.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on December 10-11, 2009, and February 8, 2010, and issued a decision on June 28, 2010.
In her decision, the AJ found Complainant established a prima facie case of discrimination because he showed that others outside of his protected class were treated more favorably under like circumstances. The AJ also found that the Agency articulated a legitimate, nondiscriminatory reason for its action; namely, Complainant was terminated because of his inability to control his temper and frustrations over routine inconveniences. The Agency cited three incidents where Complainant yelled at others. Specifically, the Agency reported that Complainant was involved in arguments or yelling on December 20, 2007, February 7 and February 22, 2008. The Agency further maintained that Complainant used his cell phone excessively, and used the Ship's communication system for personal reasons. The Agency maintained that Complainant was a trial period employee, and as such, did not get the same considerations with respect to progressive discipline and collective bargaining rights, as other employees might.
As for his award, the Agency maintained that Complainant was recommended for a Special Act Award when he served as Acting Chief Steward. However, he was terminated before the award could be processed. By that time, the Agency did not think that a Special Act Award was appropriate given that Complainant had been terminated.
The AJ found Complainant failed to prove the Agency's reasons for its actions were a pretext for discrimination. Complainant alleged that the Chief Steward referred to him with a racial epithet during the incident on December 20, 2007. The AJ found insufficient persuasive evidence establishing that this occurred. The AJ noted that none of the witnesses to the incident heard the Chief Steward refer to Complainant in that way. The Commanding Officer testified that although he spoke with Complainant after the incident, Complainant did not report at that time that the Chief Steward used the racial epithet during the argument. The AJ found no other evidence of pretext.
With respect to his claim that he was not paid his award, the AJ found that although the Lieutenant gave Complainant $1200.00 out of his own personal bank account, this was not evidence of discriminatory motive. Rather, the AJ found the Lieutenant gave Complainant the money after he informed him of his financial problems. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. The Agency asks that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
After a review of the record, we find there is substantial evidence to support the AJ's finding of no discrimination. Complainant, who was required to serve a trial period, was not entitled to the same collective bargaining rights and progressive discipline as other employees. Further, he did not persuade the AJ that the Chief Steward referred to him using a racial epithet during an argument on December 20, 2007. The AJ found Complainant failed to prove, more likely than not, that the agency's reasons for terminating him or denying him his award were a pretext to discriminate or retaliate against him. We find there is substantial evidence in the record to support this decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
2/3/12
Date
2
01-2011-0316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110316