01980460
02-16-2000
Earl D. Fulmer, Complainant, v. Hearing Nos. 360-96-8716X, 360-97-8716X F. Whitten Peters, Secretary, Department of the Air Force Agency.
Earl D. Fulmer, )
Complainant, )
) Appeal No. 01980460
v. ) Agency Nos. KHOF95430, 96532
)
Hearing Nos.
360-96-8716X,
360-97-8716X
F. Whitten Peters, )
Secretary, )
Department of the Air Force )
Agency. )
)
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency concerning his claim that the agency violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<0> The
appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
the complainant based on color (black) and reprisal (prior EEO activity)
when: (1) he was scolded by his supervisor on two occasions; (2) he
was issued a letter of reprimand on June 19, 1995; (3) he received a
rating of �Fully Successful� on his 1995 performance appraisal; and (4)
he was transferred to another unit.
BACKGROUND
The complainant filed formal complaints in October 1995 and September
1996 in which he raised what have been identified as Issues 1 through 4.
Following investigations of these complaints, the complainant requested
a hearing and his two complaints were consolidated. The administrative
judge (AJ) who heard the case subsequently issued a recommended decision
(RD) finding no discrimination or reprisal with regard to both complaints.
Specifically, although the AJ found that the complainant was able to
establish a prima facie case based on reprisal, he found that the agency
had articulated legitimate, nondiscriminatory reasons for the challenged
actions that the complainant had not established were pretextual.
The agency thereafter issued a final decision (FAD) dated September 29,
1997, finding no discrimination. It is from this decision that the
complainant now appeals.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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).
After a careful review of the record, the Commission finds that the RD
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We agree that the complainant failed to present
sufficient evidence to conclude that the challenged actions were in
retaliation for his prior EEO activity or that they were motivated by
discriminatory animus. Consequently, the Commission discerns no basis
for disturbing the RD. Accordingly, after a careful review of the record,
including the complainant's contentions on appeal, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
02-16-00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant01 On November
9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect.
These regulations apply to all Federal sector EEO
complaints pending at any stage in the administrative
process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644
(1999), where applicable, in deciding the present
appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.