0120090728
04-27-2011
Bernard Williams, Jr., Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Bernard Williams, Jr.,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090728
Hearing No. 420-2007-00229X
Agency No. ARANAD06OCT03928
DECISION
Complainant filed an appeal from an Agency’s final order dated October
24, 2008, finding no discrimination with regard to his complaint.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
In his complaint, dated November 29, 2006, Complainant, a former Heavy
Mobile Equipment Repairer, WG-5803-09, at the Agency’s Anniston
Army Depot, Alabama, alleged discrimination based on race (African
American) and in reprisal for prior EEO activity when on October 2,
2006, he was terminated at the expiration of his term appointment
and his appointment was not extended. The record indicates that at
the conclusion of the investigation, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). On October 3, 2008, the AJ,
after a hearing, issued a decision finding no discrimination, which was
implemented by the Agency in 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, § VI.B. (November 9,
1999).
In this case, the AJ determined that, assuming arguendo that Complainant
had established a prima facie case of discrimination, the Agency
articulated legitimate, nondiscriminatory reasons for the alleged
termination. The AJ noted that Complainant was hired to work as a
Heavy Mobile Equipment Repairer at the Anniston Army Depot on a term
appointment on April 18, 2005, not to exceed four years. The AJ stated
that Complainant’s initial term appointment was for a period of thirteen
months and was not to extend beyond May 17, 2006. However, on May 18,
2006, Complainant’s appointment as a term employee was extended to
September 30, 2006, and on September 29, 2006, it was extended to October
2, 2006. On October 2, 2006, stated the AJ, Complainant’s appointment
was not extended, and he was therefore terminated. Specifically, the AJ
determined that the Agency presented legitimate, nondiscriminatory reasons
in that it did not extend Complainant’s term appointment because he
was absent from his work station on occasion, because he left work when
he was supposed to be working, because he was not efficient, and because
he had problems with the Work Leader when his supervisor was absent.
The AJ stated and we agree that Complainant failed to show by a
preponderance of the evidence that the Agency’s proffered reasons were
pretextual. Upon review, we find that the AJ’s factual findings of no
discriminatory intent are supported by substantial evidence in the record.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the Agency’s final order is
AFFIRMED because the AJ’s decision is supported by substantial evidence.
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
4/27/11
__________________
Date
2
0120090728
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
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