0120062835
05-29-2008
John J. Barbusin, Jr., Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
John J. Barbusin, Jr.,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200628351
Hearing No. 160-2005-00300X
Agency No. TSAF-03-1456
DECISION
Complainant filed an appeal from an agency's final action finding no
discrimination with regard to his complaint. In his complaint, dated
December 21, 2003, complainant alleged discrimination based on race/color
(Caucasian/white) and in reprisal for prior EEO activity when on June 11,
2003, he was terminated from his position as a U.S. Federal Air Marshall
(FAM) during his probationary period.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On January 11, 2006, the AJ, after a hearing, issued a decision finding
no discrimination, which effectively became the agency's final action
at issue when it did not issue a final order within 40 days of receipt
of the AJ's decision, pursuant to 29 C.F.R. � 1614.109(i).
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. Specifically, the agency stated that complainant was
terminated on June 11, 2003, due to his persistent record of engagement in
disrespectful conduct toward various management officials, abrasive verbal
treatment of airline personnel and a disregard of agency policies, i.e.,
agency dress code. The AJ stated that according to complainant's manager,
on February 10, 2003, complainant was observed punching a gym punching bag
and repeatedly yelling-out a supervisor's name with each repeated punch.
Subsequently, complainant was verbally counseled about this incident.
Complainant does not dispute this.
The agency also indicated that on September 11, 2002, complainant, while
on duty and serving in his capacity as a FAM on board a commercial flight
in first class, was observed by a FAM supervisor being inattentive
to his duties when he was engaged in a computer game with a female
passenger seated next to him. Complainant was further observed laughing
loudly throughout the entire flight, which became an annoyance to other
passengers seated in the first class cabin and drew unnecessary attention
to him. Complainant does not dispute this. The agency further stated
that on a number of occasions, complainant was engaged in unprofessional
behavior with an airline employee, coworkers and management personnel.
The record indicates that on November 25, 2002, complainant was issued
a Letter of Counseling due to the September 11, 2002 incident, including
his other deficiencies.
The AJ stated that complainant failed to show by a preponderance of
the evidence that the agency's proffered reasons were pretextual.
Upon review, the Commission finds that the AJ's factual findings of no
discriminatory intent are supported by substantial evidence in the record.
Furthermore, we find that the AJ acted within his discretion in conducting
the hearing.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
5/29/2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120062835
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036