01A33478_r
08-28-2003
Wanda J. Wilhoite, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Wanda J. Wilhoite v. Department of the Interior
01A33478
August 28, 2003
.
Wanda J. Wilhoite,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A33478
Agency No. BIA-00-033
Hearing No. 350-A1-8158X
DECISION
Complainant appeals to the Commission from the agency's April 9, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (Black), age (date of birth: March 18, 1934)
and reprisal for prior EEO activity when, on December 7, 1997, she was
removed from her position of Teacher (Elementary), CY-1710-11, Seba Dalkai
Boarding School, for conduct unbecoming a federal employee. Following a
hearing, an Administrative Judge (AJ) issued a decision on February 28,
2003, finding that complainant had not been discriminated against.
Specifically, the AJ found that the agency presented a legitimate,
nondiscriminatory reason for its actions, which complainant failed to
rebut. The agency, on April 9, 2003, issued a decision fully implementing
the AJ's decision. Complainant now appeals from that decision.
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 has shown a legitimate nondiscriminatory reason
for the termination. The Counselor of Seba Dalkai Boarding School (School
Counselor) testified during the hearing that the Principal of Seba Dalkai
Boarding School (Principal) informed him that he had received complaints
from parents regarding complainant's alleged physical abuse of students
in her classroom. The School Counselor also testified that he was
instructed to interview the students and that he completed the interviews
of several students at the school. The School Counselor explained that
he instructed the students to write written statements describing the
events that occurred in the classroom involving complainant and that
several students indicated that complainant either shook them or grabbed
them by the arm or shoulder. The School Counselor further testified that
he filed several Suspected Child Abuse/Neglect Reports and attached the
students written statements detailing the alleged physical abuse.
Documentary evidence contained in the file demonstrates that the Principal
placed complainant on Administrative Leave on September 4, 1997, pending
an investigation of the alleged physical abuse.
During October 1997, the Principal issued a proposal to remove complainant
from her teaching position for Conduct Unbecoming A Federal Employee.
The Principal said that the proposal was based on the students written
accounts describing complainant's use of physical force in the classroom.
The Superintendent for the Fort Defiance Agency (Superintendent)
testified during the hearing that he gave complainant an opportunity
to respond to the proposal verbally and in writing during October
1997. The Superintendent stated that complainant emphasized that
the allegations were totally false and that the School Counselor
and Principal had conspired to remove her from her teaching position.
However, the Superintendent pointed out that complainant did not provide
any witnesses who corroborated her assertions that the charges were false.
The Superintendent explained that he utilized the �Douglass Factors�
and considered complainant's length of Federal service, her satisfactory
past performance record, the nature and seriousness of the offenses and
the adverse effect the offense had on his confidence in complainant's
ability to carry out the duties of her position in a satisfactory manner.
The Superintendent reported that he ultimately decided to remove
complainant from her position as a Teacher. Complainant has failed to
rebut the agency's legitimate, nondiscriminatory reason for removing
her from her position. Moreover, complainant has failed to show, by
a preponderance of the evidence, that she was discriminated against on
the bases of race, age or reprisal.
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
August 28, 2003
__________________
Date