Norris O. Hite Jr., Complainant,v.Mary E. Peters, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionFeb 8, 2007
0120061575 (E.E.O.C. Feb. 8, 2007)

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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0120061575

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0120061575