PROBATIONER REINSTATED BY EEOC

At the time of events giving rise to this complaint, Marquis was a probationary employee working as a Shipfitter Apprentice in the Norfolk Naval Shipyard (NNYS or Shipyard) in Portsmouth, Virginia.

The Agency removed Marquis from his position because of two complaints alleging insubordination and inappropriate sexual misconduct, and a report by an investigator trainee that she perceived the employee’s demeanor during his investigation interview to be angry, disrespectful, and threatening. Specifically, on March 24, 2014, the employee’s supervisor alleged that the employee had failed to fix a tool as directed, had failed to complete a job with which he was tasked and then represented that he had completed that job, and had attempted to intimidate the supervisor by swelling up his chest and staring him down. The employee was also criticized for reporting to duty to perform overtime on March 15, 2014, without authorization. On April 2, 2014, one of the employee’s second-line supervisors initiated a second investigation based on allegations by another Shipfitter Apprentice.

Things looked bad for Marquis given that probationers have very few rights to challenge a termination.  But someone in Norfolk knew enough to use the employee’s civil rights to push back.  When the EEOC finished its investigation, it concluded that the Agency’s articulated reasons for removing Complainant were pretextual, which is a nice way of saying that it was just not believable.

Under oath, the two complaining supervisor testified that the alleged incidents undergirding the two investigation requests were minor and not terminable offenses. The first line supervisor even testified that the employee probably did not intend to intimidate him or to be aggressive but rather that was the supervisor’s perception because of Complainant’s size and stature.   (Note: Marquis was a big Black man.) Other witnesses to the alleged offensive behavior either failed to show or contradicted the agency’s official reason for terminating the employee.  As a result, the EEOC found that the real reason the employee was terminated was race and sexual discrimination.

It then dropped a whopper of a list of penalties on the shipyard which should impress on every union representative that when a probationer is terminated the union should seriously consider having the employee file an EEO complaint.  We are sure the neither the union nor employee expected the agency’s evidence of the employee’s offenses to fall apart entirely. But it happens, and when it does, reinstatement, back pay, interest, attorney fees, retroactive leave, damages and even extra money to pay off the one-time large income tax bill the employee will experience are all possible remedies.  Listed below is what EEOC wrote in its remedial order in this case known as Marquis K., v. Richard V. Spencer, Secretary, Department of the Navy, EEOC Appeal No. 0720180014 (2019).

The Agency shall take the following actions:

1. Within 30 days of the date this decision is issued, the Agency shall offer Complainant reinstatement into his former Shipfitter Apprentice position. Complainant shall be provided the option of restarting the apprenticeship program from the beginning of the next apprenticeship program or, if no significant changes to the apprenticeship program have been made since Complainant was in the program, from 10 months into the program (the point he had previously reached).
2. Within 60 days of the date this decision is issued, the Agency shall pay Complainant back pay, with interest, from June 20, 2014, and other appropriate monetary benefits that Complainant would have been entitled to but for the discrimination.
3. The Agency shall pay Complainant an amount to compensate him for the tax consequences of a lump-sum payment, according to proof to be provided by Complainant. Complainant must provide that proof of increased tax liability to the Agency within 30 days of receiving the back pay award. The Agency shall then reimburse Complainant for the proven increased tax liability within 60 days of receipt of Complainant’s proof of increased tax liability.
4. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $62,750.00 in nonpecuniary, compensatory damages.
5. Within 60 days of the date this decision is issued, the Agency shall restore any sick or annual leave that Complainant would have earned from June 20, 2014, until the date he is returned to work.
6. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $13,385.00 in attorney’s fees.
7. Within 60 days of the date this decision is issued, the Agency shall purge any documents or information relating to Complainant’s June 20, 2014 removal from his official personnel file.
8. Within 90 days of the date this decision is issued, the Agency shall provide eight hours of in-person or interactive training to the responsible management officials regarding the prohibitions against race and sex discrimination under Title VII.
9. Within 60 days of the date this decision is issued, the Agency shall consider taking disciplinary action against the management officials identified as being responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be a disciplinary action.
10. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline.