Adam R. Grant, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity CommissionDec 8, 2011
0120111674 (E.E.O.C. Dec. 8, 2011)

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

2

0120111674