0120111674
12-08-2011
Adam R. Grant, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Adam R. Grant,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120111674
Agency No. HS-09-TSA-007265
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a Lead Transportation Security Officer at the Agency’s
Southwest Florida International Airport in Fort Myers, Florida. Report of
Investigation (ROI), at 1. Complainant sought counseling and subsequently
filed a formal complaint.
Complainant alleges that he was subjected to discrimination on the basis
of sex (male) when, on April 12, 2009, the Agency issued Complainant
a Letter of Counseling (LOC) and placed Complainant on a Performance
Improvement Plan (PIP).
At the conclusion of the investigation, Complainant received a copy of
the investigative report. Additionally, the Agency informed Complainant
of his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Thereafter, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). However, on July 25, 2010, Complainant submitted a written
notification withdrawing his request for a hearing for his complaint.
Complainant requested the Agency to issue a final decision.
On July 26, 2010, the AJ dismissed Complainant’s hearing request.
The AJ stated that Complainant requested withdrawal of his request for
a hearing and requested a final decision from the Agency. On appeal,
Complainant does not challenge the AJ’s dismissal of the hearing
request and we find no reason to alter the AJ’s action.
On December 27, 2010, the Agency issued its decision concluding that
it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut. Thereafter, Complainant filed the
instant appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject
to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See EEOC Management Directive 110, Chapter 9, § VI.A. November 9,
1999) (explaining that de novo standard of review “requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC
“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”).
Upon review, we find that the Agency articulated legitimate,
nondiscriminatory reasons for issuing Complainant the LOC and placing
him on the PIP. A Supervisory Transportation Security Officer (STSO)
stated that she issued Complainant the LOC because his performance
steadily declined to an “unacceptable” level. Specifically,
the STSO stated that she placed Complainant on notice and provided
Complainant guidelines to foster improvement in the areas of efficiency,
accountability, courtesy, and tact. The STSO asserted that she
considered the perspectives of Complainant’s peers and supervisors
during 11 incidents (e.g., failed to complete closing checklist, failed to
properly shutdown checkpoint and left x-ray keys on the machine, failed
to close vendor screening, “huffed and blurted” at a bag check in
the presence of officers and passengers, and inappropriately responded
to supervisors’ questions and comments) and stated that she placed
Complainant on a PIP for 45 days because Complainant’s performance
handling “x-ray operation was unacceptable.” ROI, at Exhibit F-1f.
After a careful review of the record and contentions on appeal, the
Commission finds that Complainant failed to rebut the Agency's articulated
legitimate, nondiscriminatory reasons for its actions. Additionally, the
Commission finds that Complainant has failed to show by a preponderance of
the evidence that he was subjected to discrimination on the basis of sex.
CONCLUSION
The Agency’s decision finding no discrimination 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
December 8, 2011
__________________
Date
2
0120111674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111674