0120063815
03-07-2008
Alvin D. Mount, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Alvin D. Mount,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200638151
Hearing No. 340-2005-00730X
Agency No. TSAF-04-1041
DECISION
Complainant filed an appeal from the agency's 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. For the following
reasons, the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Transportation Security Screener. On January 3, 2005, complainant
filed an EEO complaint claiming that he was discriminated against on
the bases of race (African-American) and sex (male) when:
1. On August 21, 2004, he was terminated from his employment as a
Security Screener at Los Angeles International Airport.
2. He was not rehired.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When complainant did not object, the AJ assigned
to the case granted the agency's Motion for Summary Judgment and issued
a decision without a hearing on April 26, 2006.
The AJ found that complainant failed to establish a prima facie case
of discrimination based on race or sex because he failed to show that
he was treated differently from similarly situated individuals not of
his protected class. The agency stated that it terminated complainant
during his probationary status due to his credit problems. The AJ noted
that complainant stated in his affidavit that he did not believe actions
based on credit problems were uniformly applied across the entire agency.
Complainant believed that some individuals managed to keep their jobs
and others lost their jobs. The AJ stated that complainant was unable
to cite any specifics, but nevertheless asserted that a review of
agency records at the Los Angeles International Airport would establish
disparate treatment. Upon review of these records, the AJ found that
complainant's conclusions were not supported. According to the AJ, the
records showed that 166 agency employees at the Los Angeles International
Airport were terminated for credit problems between September 2001 and
August 2003. The AJ noted that nine of those employees were rehired,
including three Black males, three White males, two White females, and
one Hispanic female. The AJ found that this distribution did not lead
to an inference of discrimination based on race or sex.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. On appeal, complainant contends that the agency has
treated him very unfairly. In response, the agency asserts that the AJ
correctly found that complainant failed to establish a prima facie case
of discrimination based on race or sex.
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). 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of sex and race discrimination.
The agency stated that complainant was terminated from his position
during his probationary period due to credit problems. According to
the agency, complainant had over $29,000 in delinquent accounts over
180 days old. The agency stated that the Security Screener position
description stated that a credit check revealing a default of $5,000
or more in debt (excluding certain circumstances of bankruptcy), would
result in ineligibility for the position. We find that the agency
articulated a legitimate, nondiscriminatory reason for its decision to
terminate complainant. Complainant now bears the burden to establish
that the agency's explanation was pretext intended to mask discriminatory
motivation. Complainant has not denied the accuracy of the credit check
showing that he has over $29,000 in delinquent accounts over 180 days old.
The record reveals that of the 166 individuals terminated for credit
problems, 44% were Black, 40% were White and 16% were of another race.
As for sex, 65% of these individuals were male and 35% were female.
In terms of the individuals who were rehired, five were White, three
were Black and one was Hispanic. Six of the rehired individuals were
male and three were female. Upon review of the arguments set forth by
complainant and the evidence in the record, we find that complainant
has not established that the agency's explanation was pretext intended
to mask discriminatory motivation. Complainant has not shown that he
was terminated or not rehired because of his race or sex.
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
March 7, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 This claim was not accepted for investigation, but the EEOC
Administrative Judge found that it should have been accepted and then
proceeded to make a finding on the claim. The agency listed this claim
in its final decision. Complainant does not argue on appeal that this
claim is not part of the complaint. We will address this claim since
there is sufficient information in the record to adjudicate this claim.
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01200644
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063815
0120063815