01A45831_r
12-09-2004
John V. Fors, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
John V. Fors v. Department of Homeland Security
01A45831
December 9, 2004
.
John V. Fors,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A45831
Agency No. 7-03-3068
Hearing No. 110-2004-00186X
DECISION
Complainant appeals to the Commission from the agency's August 2, 2004
decision finding no discrimination. Complainant alleges discrimination on
the bases of race (Caucasian) and age (date of birth: November 13, 1937)
when, on October 6, 2002, the agency terminated complainant's conditional
employment as a security screener following complainant's failure to
pass the Image Interpretation Test (ITT) required for continuance in
the security screener position's training program.<1>
On June 24, 2004, an EEOC Administrative Judge (AJ), without a
hearing, issued a decision finding that there was no genuine issue
of material fact in dispute, and concluded that complainant had not
been discriminated against. Specifically, the AJ found that the agency
presented a legitimate, nondiscriminatory reason for its actions, which
complainant failed to rebut. The agency, on August 2, 2004, issued a
decision fully implementing the AJ's decision. Complainant now appeals
from that decision.
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). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. 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 exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. 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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
We find that the agency has shown a legitimate nondiscriminatory reason
for its actions. Specifically, in a letter signed by complainant on
October 5, 2002, given to him following his initial failure of the ITT,
the agency stated that, "we too have a stake in your success at TSA,
and are offering you a chance to repeat the image interpretation portion
of the training program tomorrow." The letter further stated, "[i]f
you do not pass at that time, you will not be afforded any additional
opportunities and your conditional offer of employment will be rescinded."
Moreover, on page 5 of the agency's On-The-Job Training Procedures it
states that, "[s]tudents who fail only the ITT portion of the [test]
will be offered one opportunity at remediation . . . [a] second ITT
will be administered after remediation, which the student must pass.
Failure at this point is grounds for dismissal." Therefore, the agency
acted in conformity with procedural guidelines found in the On-The-Job
Training Procedures and the letter given to complainant on October 5,
2002, when it discharged complainant after his failure to pass the ITT
the second time.
The Commission finds that complainant has failed to rebut the agency's
articulated legitimate, nondiscriminatory reason for its actions.
Complainant has failed to show, by a preponderance of the evidence,
that he was discriminated on the bases of race or age.
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
December 9, 2004
__________________
Date
1According to the Report of Investigation,
complainant withdrew the bases of color, national origin and sex at the
time he signed his declaration.