0120061575
02-08-2007
Norris O. Hite Jr., Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Norris O. Hite Jr.,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200615751
Agency No. 1-04-1031
Hearing No. 170-2005-00141X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleged that he was
subjected to discrimination on the bases of race (African-American),
sex (male), and color (black) when, on November 13, 2003, he was
terminated during his probation period from his position as a Writer
Editor, FG-1082-13, assigned to the William J. Hughes Federal Aviation
Administration (FAA) Technical Center, Atlantic City International
Airport, Atlantic City, New Jersey.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on October 27, 2005, finding that complainant had not been discriminated
against. Specifically, the AJ found that the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On December 12, 2005, the agency, fully implementing the
AJ's decision, issued a decision finding no discrimination. Thereafter,
complainant filed the instant appeal.
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.
We find that the agency articulated a legitimate, nondiscriminatory
reason for terminating complainant. The Program Director stated that
the notice of termination was issued to complainant because complainant
arrived for work late on seven occasions, at least once without a call
to the office and incurred seventeen absences during the last six months
of his employment with the agency. The Program Director asserted that
complainant worked overtime on several dates without advance approval.
The Program Director maintained that complainant did not comply
with his self-imposed deadline for publication of the Intercom, and
that typographical errors as well caption errors for a picture of a
high-ranking government official appeared in the Intercom. The Program
Director articulated that complainant failed to meet original printing
deadlines set for preparation of the FAA technical center brochure to
be provided to the Air Traffic Control Association (ATCA) convention
in October 2003. Complainant failed to rebut the agency's legitimate,
nondiscriminatory reasons for its actions. Complainant failed to show,
by a preponderance of the evidence, that complainant's termination
was motivated by discrimination on the bases of race, sex or color.
The AJ's decision finding no discrimination is supported by substantial
evidence in the record.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
February 8, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
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0120061575
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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