0120102854
09-27-2010
John Quinn, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
John Quinn,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120102854
Hearing No. 450-2010-00035x
Agency No. HS-09-TSA-002053
DECISION
On June 24, 2010, Complainant filed an appeal from the Agency's April 29, 2010, Final Order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely, and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's Final Order.
ISSUES PRESENTED
The issues presented in this appeal are (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing in this matter (summary judgment); and (2) whether Complainant established that the Agency discriminated against him, as alleged.
BACKGROUND
On January 12, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against him in reprisal for prior EEO activity under the Rehabilitation Act when it terminated him on September 12, 2008. Following an investigation, Complainant requested a hearing before an AJ. On January 28, 2010, the Agency filed a Motion for Findings of Fact and Conclusions of Law without a Hearing (Motion). The Complainant responded, and the Agency replied in turn. On April 14, 2010, the AJ issued a decision without a hearing, finding that the Agency did not discriminate against Complainant, as alleged.
In October 2002, Complainant began his service with the Agency as a Lead Transportation Security Officer (LTSO) at the Salisbury/Wicomico County Regional Airport in Salisbury, Maryland. In March 2007, he transferred to the Midland International Airport (MAF) in Midland, Texas, as a Transportation Security Officer (TSO). At the time of his termination, Complainant worked as a Behavioral Detection Officer (BDO) at MAF.1
Following current and previous complaints from others at MAF about Complainant's behavior, in July 2008, the Agency conducted a sexual harassment fact-finding investigation of his actions. The investigation found that Complainant engaged in 11 specific incidents that were likely in violation of several Agency Management Directives on harassment and sexual harassment. On August 28, 2008, the Assistant Federal Screening Director issued to Complainant a Notice of Proposed Removal for Misconduct of a Sexual Nature and Unprofessional Conduct, and, on September 12, 2008, the Acting Federal Security Director (FSD) issued a Notice of Decision removing him from his position for the charges specified. In the decision letter, the FSD upheld five of the 11 incidents, i.e., touching a female employee's breasts, transmitting a nude photo of another female employee with the text "Slut of the Year goes to...," describing, in gruesome detail, the killing of a rabbit and/or mouse in front of others in the break room, sending a picture of himself dressed as a hit-man with a gun, and making threats about his ex-wife in a telephone conversation overheard by others.2
The AJ held that no genuine issue of material fact remained and that Complainant had not demonstrated otherwise; she determined that a decision without a hearing was appropriate in this matter. Further, she concluded that Complainant could not establish a prima facie case of discrimination based on reprisal and that, even if he did so, he failed to demonstrate pretext in response to the Agency's legitimate, nondiscriminatory reasons.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts a connection between the termination action and the resolution of his prior EEO complaint activity in May 2008. He describes his previous EEO activity, stating it addressed a necessary reasonable accommodation for a medical condition (irritable bowel syndrome) and points out that the Agency initiated the sexual harassment investigation within a few months thereafter. He disagrees with the AJ's determination that a summary judgment decision was appropriate, contending he could have established that the FSD had knowledge of his prior EEO activity. He also contends that the Agency's reasons for his termination were suspicious. Finally, he argues that the Agency violated its one of its own policy directives not to terminate employees for a first violation, and criticizes the AJ for failing to address it.
The Agency, on appeal, argues that Complainant's Notice of Appeal was filed untimely from the date of transmission to Complainant's counsel by electronic mail and Complainant's receipt of the Final Order conventional mail. Also, it contends that Complainant cannot establish a prima facie case, because the FSD was unaware of Complainant's prior EEO activity, in that he only arrived at MAF in July 2008. The Agency also asserts that, in addition, Complainant cannot show a causal connection by temporal proximity. Lastly, the Agency contends that Complainant did not demonstrate pretext or undermine the Agency's legitimate reason for his termination.
STANDARD OF REVIEW
The standard of review in rendering this appellate decision is de novo, i.e., the Commission will examine the record and review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and issue its decision based on the Commission's own assessment of the record and its interpretation of the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999).3
ANALYSIS AND FINDINGS
Timeliness of the Appeal
As a preliminary matter, we note that we have deemed Complainant's appeal timely. We note that our regulations contemplate service of documents by conventional mail or in-person delivery. Our regulation on "Filing and computation of time" provides, in relevant part: "A document shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period." 29 C.F.R. � 1614.604(b). The Agency does not contend that it served the Final Order on Complainant's Attorney by conventional mail or by in-person delivery. Further, because Complainant is represented by an attorney, the applicable filing period does not begin to run until proper service is made on the attorney. 29 C.F.R. � 1614.402(b). Accordingly, in the absence of proof of proper service of the Final Order on Complainant's attorney, we deem the appeal timely filed.
Summary Judgment
Initially, we consider whether the AJ properly issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when s/he finds that there are no genuine issues of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure in the Federal Rules of Civil Procedure, Rule 56. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there is no genuine issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
In ruling on a motion for summary judgment, a fact-funder's function is not to weigh the evidence but rather to determine whether there are genuine issues for a hearing. Anderson v. Liberty Lobby, Inc., at 249. The evidence of the non-moving party must be believed at the summary judgment stage, and all justifiable inferences must be drawn in the non-moving party's favor. Id., at 255. 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. After review, we find that summary judgment was proper, in that the record is adequately developed for a decision on the merits, and no genuine issues of material fact or credibility determinations remained to be decided.
Legal Framework - Disparate Treatment (Reprisal)
In his complaint, Complainant alleged that the Agency discriminated against him because of his prior EEO activity. Analysis of disparate treatment claims of discrimination is patterned after the three-step scheme announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
To establish a prima facie case of reprisal, a Complaint must show that: (1) Complainant engaged in a protected activity; (2) the acting Agency official(s) was aware of the protected activity; (3) subsequently, Complainant was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Coats v. EEOC, EEOC Appeal No. 0120044333 (May 17, 2007); see Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). See Section 8: Retaliation, EEOC Compliance Manual.
Once the Complainant has established a prima facie case, the Agency is required to articulate a legitimate, nondiscriminatory reason for its actions. To prevail, Complainant must demonstrate, by a preponderance of the evidence, that the Agency's reason(s) for its action was a pretext for discrimination, i.e., that the Agency's reason was not its real reason and that it acted on the basis of discriminatory animus. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant's initial burden to establish a prima facie case of discrimination may be passed over where the Agency articulates legitimate, nondiscriminatory reasons for its actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). The inquiry then moves to consideration of whether Complainant demonstrated pretext.
Findings
We find that the Agency carried its burden to articulate legitimate, nondiscriminatory reasons for its actions. Specifically, following the sexual harassment fact-finding investigation, the Agency charged that Complainant engaged in misconduct of a sexual nature and unprofessional conduct, and violated Agency directives on harassment, both sexual and non-sexual. The Agency found that Complainant's actions and behavior compromised the mission of the Agency to secure and protect the public; to do so, its employees must be free of distractions, harassment, and fear from their co-worker. Complainant's actions caused distress and anxiety among employees, and his threats and intimidating actions induced fear.
In the final step in the analysis, Complainant bears the ultimate burden to demonstrate pretext. In order to prevail, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason(s) was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward him because of his prior EEO activity. See St. Mary's Honor Center v. Hicks, supra. Upon review, we concur with the AJ's determination that Complainant failed to provide any evidence of pretext. Further, we find that the record is devoid of any evidence that the Agency's actions were motivated by retaliatory animus.
CONCLUSION
After a review of the record in its entirety and consideration of all statements submitted on appeal, including those not specifically addressed, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision, because the AJ's issuance of a decision without a hearing was appropriate, and the preponderance of the evidence of record does not establish that discrimination occurred.
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
September 27, 2010
Date
1 Complainant accepted this position in settlement of his prior EEO complaint.
2 After his removal, Complainant petitioned the Agency's Disciplinary Board for review of his termination. The Board upheld the Agency's action.
3 References cited in this decision and other information are available on the Commission's website: www.eeoc.gov.
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0120102854
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102854