01971956
03-04-1999
Victor Guarin, George Alvarez, )
Victor Guarin, George Alvarez, )
Cecil Franceschina, Paul Garcia, ) Appeal Nos. 01971955,
Frank Torres, David Orsino, ) 01971956, 01972004,
Richard Slover, Brian March, ) 01972005, 01972006,
& Oliver Shavies, Jr., ) 01972007, 01972008,
Appellants, ) 01972009, 01972150
)
) Agency Nos.94-68378-006B, ) 94-68378-006I,
) 94-68378-006D, v. ) 94-68378-006F,
) 94-68378-006,
) 94-68378-006E,
) 94-68378-006C,
) 94-68378-006G,
Richard J. Danzig, ) 94-68378-006H
Secretary, )
Department of the Navy, ) Hearing Nos. 370-95-X2740
Agency. ) through 370-95-X2748
___________________________________)
DECISION
On December 30, 1996, the nine above-named appellants each filed a
timely appeal from the final decisions of the Department of the Navy
(agency), dated December 9, 1996, concluding each of them had not been
discriminated against in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and/or the Age Discrimination
in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq.,
when they were allegedly denied proper protective clothing, training,
inoculations, hazardous duty pay and other information needed to work in
a hospital setting where the threat of exposure to infectious disease
existed.<1> This appeal is accepted in accordance with the provisions
of EEOC Order No. 960.001.
The record reflects that each of the appellants was employed by the
agency at the Navy Public Works Center in the San Francisco Bay area.
The appellants performed various trade functions at a number of agency
installations. Appellants Torres and Guarin were pipefitters; Appellants
Shavies, Orsino, Alvarez and Franceschina were carpenters; Appellant
Garcia was a painter; and Appellant March was an electrician. All shared
the same supervisor, the Maintenance Foreman for the Public Works Center.
By late 1993/early 1994, all the appellants had been assigned to work
at the Naval Hospital in Oakland. They were not part of the medical
staff and worked directly for the Public Works Center, not the hospital.
The appellants stated that they believed that their assignment to the
Naval Hospital exposed them to health hazards, such as HIV and hepatitis,
and that the agency did not take appropriate steps to protect them from
these potential hazards.<2> They compared themselves to the staff members
of the hospital, both medical and non-medical, who they asserted received
more protection from the agency than they did. The record establishes
that these comparative employees worked directly for the hospital and
not the Public Works Center. The record further establishes that
the Public Works Center supplied the appellants with many types of
protective clothing and equipment, including goggles, rubber gloves,
water-repellant coveralls, disposable gowns, masks and respirators,
as well as hard hats and steel-toe shoes. Management averred that
the infectious areas of the hospital were conspicuously marked so that
appropriate precautions could be taken. Moreover, the supervisor said
that the clothing appellants alleged they were denied and others received
were uniforms and not protective clothing.<3>
With regard to hazardous duty pay, the evidence demonstrated that by
agency regulation, employees received such compensation based on the
type of job being done and not the setting in which work was performed.
Moreover, no other Public Works Center employee received hazardous duty
pay for working in a hospital setting. As to the allegation concerning
inoculations, the evidence revealed that such inoculations were available
to appellants at the hospital on a voluntary basis, and appellants
attended a formal lecture where they were informed of this availability.
Some the appellants did, in fact, receive inoculations for hepatitis.
Finally, concerning the allegation of inadequate training and information
needed for working in a hospital setting, the evidence revealed that
appellants were provided with a number of training sessions and stand-up
talks concerning health and safety issues, including information on
blood borne pathogens, infection control and hepatitis.
In February 1994, each of the appellants filed a formal EEO complaint
raising the allegations of discrimination discussed above.<4> In addition,
Appellant Franceschina alleged she was denied access to a female-only
restroom and had to share restroom facilities with her male coworkers.
After about a year, the evidence indicates that the Foreman designated one
of the four Public Works Center restrooms on the grounds of the hospital
for the exclusive use of female employees.<5> Appellant Franceschina,
however, believed she was discriminated against because male employees
were provided with a shower in their restroom, while she was not.
The Foreman asserted, and appellant did not dispute, that she never
requested a shower, and that the one shower facility was available to all
employees, male or female. Appellant Franceschina also asserted that a
male broke into her restroom and another male undressed in her presence in
retaliation for her prior EEO activities. Appellant Franceschina failed
to identify the first male and indicated that she had no knowledge of this
individual's awareness of her prior EEO activity. With regard to the
undressing incident, the record indicates that a male employee removed
his coveralls in Appellant Franceschina's presence, as well as a number
of other male employees, but was fully dressed underneath the coveralls.
Upon receiving a complaint from Appellant Franceschina, the Foreman
admonished this employee to change clothes in a more private location.
The agency accepted the complaints and conducted investigations on each
one. At the conclusion of the investigations, appellants requested
an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ). The nine complaints were
consolidated for hearing. However, on October 22, 1996, pursuant to
29 C.F.R. �1614.109(e), the AJ issued a decision without a hearing
based on the evidence of record, finding no discrimination on each of
the complaints. First, the AJ concluded that the appellants failed
to establish a prima facie case of discrimination based on their race,
national origin, sex and/or retaliation for prior EEO activity, noting
that they were a diverse group of employees who were treated in the same
manner and that they had presented no evidence of any other similarly
situated employees being treated more favorably. Second, although all
the appellants were over 40 years of age, the AJ found no other evidence
which would lead to an inference that age discrimination had occurred.
The AJ noted that the agency articulated legitimate, nondiscriminatory
reasons for its actions, which appellants failed to establish were
unbelievable or more likely motivated by discriminatory animus.
On December 9, 1996, the agency adopted the findings and conclusions
of the AJ, and issued virtually identical final decisions concluding no
discrimination had occurred against any of the appellants. It is from
these decisions that appellants now appeal.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis to
disturb the AJ's finding of no discrimination. Nothing proffered by
appellants on appeal differs significantly from the arguments raised
before, and given full consideration by, the AJ.<6> Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final decisions on each of the complaints, which adopted
the AJ's finding of no discrimination.
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. � l6l4.604(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. 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 4, 1999
__________________ _______________________________
DATE Ronnie Blumenthal, Director
1 The above-entitled complaints were consolidated for hearing
because they all involved the same issue. An additional allegation
brought by Appellant Franceschina involving the lack of a restroom
designated for her use and one brought by Appellant Slover because
one of the restrooms for male employees was later provided for the
use of Appellant Franceschina were also processed with these cases.
2 There was no evidence, however, that any of the appellants contracted
any infectious disease while working at the hospital.
3 The record also established that the comparative employees were
members of various racial and ethnic groups.
4 The individual bases of discrimination alleged by each appellant
are as follows: Victor Guarin, a male--age (53) and national origin
(Filipino); George Alvarez, a male--age (49) and national origin
(Mexican); Cecil Franceschina--sex (female), age (54) and reprisal for
engaging in prior EEO activity; Paul Garcia, a male--age (62) and race
(Asian); Frank Torres, a male--age (50) and national origin (Hispanic);
David Orsino, a male--age (67) and national origin (Filipino); Richard
Slover, a white male--age (56); Brian March, a white male--age (41);
and Oliver Shavies, Jr., a black male--age (46).
5 Appellant Slover additionally alleged he was discriminated against
because of his sex and/or prior EEO activity when Appellant Franceschina
was given one of the male restrooms.
6 The Commission notes that, on appeal, some of the appellants asserted
that the agency was incorrect in refusing to settle this case unless all
appellants joined in the settlement. Settlement between the parties
is voluntary, and the Commission is unpersuaded that the agency acted
improperly in this regard.