01A32764_r
01-09-2004
Allen Livengood, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Allen Livengood v. Department of the Army
01A32764
January 9, 2004
.
Allen Livengood,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A32764
Agency No. BPDWF09908J0490
Hearing No. 110-A1-8425X
DECISION
Complainant appeals from the agency's final order dated March 3, 2003,
finding no discrimination. Complainant claimed that the agency had
discriminated against him on the bases of sex (male), disability (heart
attack, degenerative arthritis, cancer, and hearing loss), and age (55)
when, on July 17, 1999, he was removed from the position of Computer
Specialist (Program Analyst) GS-334-9, during his probationary period.<1>
The agency investigated the complaint and thereafter referred the matter
to an EEOC Administrative Judge (AJ), who held a hearing and issued
a decision finding no discrimination on January 24, 2003. The agency
issued its final order on March 3, 2003, in which it implemented the
AJ's 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). The AJ found that complainant
did not establish a prima facie case of discrimination, on any basis.
Complainant identified two younger, non-disabled female employees
as comparatives. Neither comparative had the same job duties that
complainant had, nor did they work under the same first-line supervisor
as complainant. Moreover, neither comparative had performance problems
during their probationary periods, as did complainant. Consequently,
neither comparative was similarly situated with complainant for
the purpose of establishing a prima facie case of discrimination.
Complainant has not presented any other evidence that considerations
of his sex, age, or alleged disabilities played a role in the agency's
decision to remove him. The AJ's finding of no discrimination is
therefore supported by substantial evidence of record.
Accordingly, 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
January 9, 2004
__________________
Date
1Complainant neither requested an accommodation nor claimed that the
agency failed to accommodate his alleged disabilities.