0120092142
01-27-2012
John A. Clemons, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
John A. Clemons,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120092142
Hearing No. 520-2008-00169X
Agency No. HS-07-TSA-001248
DECISION
On April 17, 2009, Complainant filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the Agency’s
March 30, 2009, final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a).
ISSUES PRESENTED
The issue presented is weather Complainant was discriminatorily harassed
based on his race (African-American) from June 11, 2006 through July 10,
2007, when:
1. the Agency denied him pay for overtime worked from June 11-24 and
September 17-30, 2006;
2. the Agency denied him pay, including overtime and nighttime
differential pay from October 1 through 14, 2006, and sent him home and
charged him Absent Without Leave (AWOL) for a portion of October 1, 2006;
3. from June through December 2006, his supervisor habitually recorded
erroneous time information on him;
4. on November 21, 2006, his screening manager threatened to send him
home if he did not sign a letter converting him to limited duty status;
5. on December 21, 2006, the screening manager disregarded his safety
while he was a passenger in the manager’s car;
6. the Agency denied him his scheduled PASS 2007 training session;
7. his supervisor and screening manager wrote him up on December 21,
2006, and on January 3 and 22, February 19 and March 4, 2007;1
8. on January 8, 2007, the screening manager sent Complainant home for
refusing to sign a letter of reprimand;
9. on February 19, 2007, his successor screening manager wrote him up
for using unscheduled leave;
10. on April 4, 2007, a second supervisory screener counseled Complainant
about his attendance, and the successor screening manager approved this;
11. on June 6, 2007, the second supervisory screener counseled
Complainant about acting in a disrespectful manner to a co-worker,
which the successor screening manager approved;
12. on June 17, 2007, another supervisory screener counseled Complainant
about an unauthorized absence from his assigned duty station, which the
successor screening manager approved; and
13. on July 10, 2007, a different supervisory screener counseled him
about saying he did not remove shampoo from a plastic bag when he did so,
which a different screening manager approved.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Transportation Security Officer at the Agency’s LaGuardia
International Airport in Flushing, New York. On March 14, 2007, he
filed an EEO complaint, as amended, alleging the above claims.
Following an investigation, Complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing finding no discrimination, which the Agency fully implemented.
On the pay incidents, the AJ found that Complainant did not identify
evidence showing he was entitled to the pay he was allegedly denied.
The AJ noted that Agency managers reviewed Complainant’s claims
about pay errors; and the record shows this resulted in favorable
pay adjustments. The AJ found that more importantly, Complainant did
not show that his screening supervisor was motivated by discriminatory
bias in erroneously recording Complainant’s pay. The AJ noted that
Complainant did not dispute his supervisor’s statement that he made
errors on other employees pay records.
On the counseling claims, the AJ found that Complainant failed to
show that non-discriminatory reasons for counseling, i.e., his lack
of cooperation and inappropriate behavior in refusing to acknowledge
counseling, were not the reasons for the counseling. The AJ also found
that Complainant was not disparately treated. On the remaining incidents,
the AJ found that they did not rise to the level of actionable harassment,
nor show that his race was a factor in them.
On appeal, Complainant reiterates arguments he made below.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ’s legal
and factual conclusions, and the Agency’s final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an
appeal from an Agency’s final action shall be based on a de novo review
. . .”); see also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9, 1999)
(providing that both the Administrative Judge’s determination to issue
a decision without a hearing, and the decision itself, are subject to de
novo review). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions
and legal analysis. See id. at Chapter 9, § VI.A.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. §�
�1614.109(g). An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, issuing a decision
without holding a hearing is not appropriate.
Based upon a review of the record, we find that there are no genuine
issues of material fact in dispute.
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be
determined by looking at all the circumstances, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee’s work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
We agree with the AJ’s findings on the pay claims. The record showed
that multiple Agency officials met with Complainant to sort out his pay
issues, and this resulted in favorable pay adjustments. Complainant
states he is owed more, largely based on his personal records, but he
does not submit sign in/out sheets or overtime slips which could verify
his claims. It is uncontested that errors in pay are common, and we
agree with the AJ’s finding that Complainant did not show the errors
were discriminatory.
We agree with the AJ’s finding that the uncontested facts show that
most or all the counselings were warranted. For example, Complainant
was counseled for on September 28, 2006, walking out of a briefing
on overtime procedures, refusing to return when asked or discuss the
problem, and being argumentative; and was counseled on March 4, 2007,
for refusing to follow directions to change his post. In response
to the first counseling Complainant did not dispute what occurred,
rather, he argued about overtime. In response to the second counseling
Complainant did not dispute that the screening supervisor asked him to
change his post, rather, he argued that he declined to do so because he
was assigned his original post by the screening manager. The screening
manager stated checkpoints are staffed based on changing needs, and
indicated Complainant’s refusal to listen to the supervisor forced
her to directly tell Complainant to change his post. The uncontested
facts show these counselings were warranted.
The AJ found that Complainant did not show that it was incorrect to charge
him with AWOL on October 1, 2006. On October 1, 2006, Complainant’s
screening manager tried to give him a written counseling for what occurred
on September 28, 2006. Complainant refused to read the counseling and got
very agitated. He raised his voice and said “this is bull and I’m
not reading anything,” creating a disturbance in a public area where
there were passengers. He was told if he did not lower his voice he
would have no choice but to send him home. Complainant did not dispute
any of this, stating his screening manager wanted him to read and sign
the counseling, which “I refused to do, with much disagreement.”
Complainant went home. Three witnesses stated Complainant left of his own
volition, with two characterizing him as storming out. Complainant was
charged with 5½ hours of AWOL. While there is a dispute as to whether
Complainant left on his own volition, given the circumstances of his
departure, he has not shown race discrimination on the AWOL.
Complainant received a memorandum of counseling for the October 1, 2006,
incident for not conducting himself with professionalism and courtesy.
Language therein indicated it was not formal discipline and would not be
placed in Complainant’s official personnel file (OPF). The uncontested
facts show this counseling was warranted.
Regarding being sent home on January 8, 2007, the record shows that on
January 8, 2007, Complainant’s screening manager met with him for a
pre-decisional meeting because he was considering giving him a letter
of reprimand for an incident on January 2, 2007, where Complainant did
not follow an urgent direction to go to a certain post, but instead went
to another location. When questioned, Complainant got defensive, was
uncooperative, said this was redundant and going in circles, and was loud.
The screening manager asked Complainant to go to his checkpoint, and as
he was walking away he said “May God bless you because you’re really
going to need it.” The screening manager took this as a threat and sent
Complainant home. Complainant does not dispute what occurred on January
8, 2007. While he stated he was sent home for refusing to sign the
reprimand (actually a counseling), he did not dispute his supervisor’s
above account of what occurred. Given the above undisputed facts,
we find Complainant was sent home on January 8, 2007, because of his
actions, not discrimination. He reported to work the next day and worked.
Complainant received a letter of counseling dated February 19, 2007,
for use of unscheduled leave, including sick leave and tardiness.
While Complainant contended that he called in, he has not pointed to
facts showing the leave was scheduled in advance
On the PASS matter, the AJ found that Complainant qualified for PASS
in July 2006 within 30 days after he started working for the screening
supervisor he identified as responsible for the discrimination. This was
too late to get his associated bonus. Complainant’s supervisor
explained that because Complainant’s shift started at 5:30 PM, it
was difficult for assessors to complete related on-the-job training
(OJT) because there is only a short period of passenger flow. He also
stated that communication skills, meaning acting with courtesy, tact
and professionalism, is an integral part of PASS, and Complainant had
problems in this area. Complainant has not pointed to disputed facts
indicating hat the Agency’s explanations regarding PASS were pretext
to mask discrimination.
On the car incident, the record reflects that the screening manager
drove a few feet before he realized Complainant was not fully in the car
and/or his door was not closed. He then stopped. There is no evidence
this was deliberate.
We agree with the AJ’s finding that given that most or all of the
alleged incidents of harassment were not shown to be discriminatory,
any the remaining incidents were not sufficiently severe or pervasive to
rise to the level of an abusive work environment to constitute harassment.
The Agency’s final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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 27, 2012
__________________
Date
1 While the parties do not contest these dates, some appear to be
incorrect.
2 The AJ defined the harassment as consisting of incidents 1 through
9, but the Agency conceded that it included incidents 10 through 13.
The AJ also conceded this by listing the additional incidents on page
8 of his decision.
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0120092142
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092142