Commission failed to act within the statutory 180-day period.
Plaintiff's claim of discrimination for penalties suffered prior to his final discharge fails of proof. It rests primarily, apart from plaintiff's own subjective feelings, upon his claim that whites received less harsh discipline for similar offenses and that generally blacks in the unit were disciplined more frequently and more heavily than whites. Not only were these assertions stoutly denied by supervisors appearing as witnesses, but plaintiff was unable to submit a single specific instance of such inequitable treatment. In addition, stipulated statistics covering discipline in its many different aspects failed to show any disproportionate treatment. Even when examined pointedly for the discipline of blacks attributable to white supervisors, there was no significant statistical disparity between blacks and whites respecting discipline.
It is notable here that each of the disciplinary actions of which plaintiff complains was contemporaneously documented, that plaintiff had continuing access to his union representatives and that plaintiff himself was forced to concede that in many cases a violation occurred and reasons advanced for discipline were not pretextual.
There remains the question whether plaintiff has established that his final discharge was an act of reprisal. Testimony from white and black supervisors present at the time established that plaintiff's conduct justified his being ordered to leave the premises. His flat refusal to go to the supervisor's office for discussion of his absence from the floor, and his loud and uncontrollable action when confronted by supervisors gave adequate cause for calling for his immediate removal from the floor. The incident involved no racial slurs, and was not attributable to his race or EEO complaint. It is not necessary for the Court to determine whether or not plaintiff thereafter threatened to kill his supervisor. Giving weight to the arbitrator's report, which is in evidence, and considering other elements of the proof, this incident probably occurred. However, even had Olds exaggerated or misrepresented the incident, there is no evidence, and no inference can be drawn, that such an act or the subsequent discharge was for racial reasons or in reprisal for plaintiff's earlier claims alleging discrimination.
The United States District Court for the District of Columbia must frequently review personnel actions within the federal agencies. Many complaints, and the Court believes this is one, are brought by plaintiffs who have a genuine belief that their failure to make the grade in Government service is directly attributable to their race, their sex, or their age. Often these subjective feelings are strongly asserted but a finding of discrimination requires proof, either direct or circumstantial. While the burden of going forward shifts to defendants in cases of this type after a limited and often uncertain showing, the ultimate burden of proof rests upon plaintiff. It is not enough for plaintiff to show that he is black and that he was frequently disciplined and ultimately discharged. There were legitimate grounds for these actions. Plaintiff has failed to meet the test laid down in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for the record wholly fails to show that the various personnel actions were singly or together a pretext for race discrimination or taken in reprisal.
Judgment for defendant and the complaint is dismissed. No costs to either party.
The foregoing constitutes the Court's findings of fact and conclusions of law.
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