0120133006
05-06-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120133006
Hearing No. 443-2013-0063X
Agency No. HS-TSA-21696-2012
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 22, 2013, 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 Agency's final order finding no discrimination or harassment is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer at the Agency's Minneapolis St. Paul International Airport in Minneapolis, Minnesota. On March 24, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when:
1. In February 2010, management removed him from the Safety Action Committee at the airport.
2. On February 19, 2010, management denied him a detail to a Security Training Instructor position.
3. In 2011, management denied his request to extend his membership on the Safety Action Team.
4. In January 2011, management denied him a temporary duty assignment in Bemidji, Minnesota.
5. On February 9, 2011, he applied for a Transportation Security Inspector position and never received a response.
6. On February 11, 2011, he applied for a Transportation Security Inspector (Aviation) position and never received a response.
7. On February 20, 2011, he applied for a Transportation Security Inspector (Surface) position and never received a response.
8. In March 2011, he applied for the Emergency Response Team, but was never selected for an assignment.
9. In March and October 2011, management denied him a position on the Master Executive Council.
10. On April 20, 2011, he applied for a Behavioral Detection Officer position and never received a response.
11. On unspecified dates, he was denied unspecified collateral duty positions.
12. On August 23, 2011, he was not selected for a Financial Specialist position advertised under vacancy announcement number (VAN) HQ-OSO-09-177514.
13. On December 11, 2011, he was not selected for a Scheduling Officer position at the Airport.
14. On December 14, 2011, he learned that he was not selected for a Program Analyst Position advertised under VAN SV-0343-G.
15. On January 14, 2012, he applied for a Transportation Security Manager-Behavior Detection Officer position and never received a response.
16. On March 25, 2012, management denied him a detail to the Supervisory Transportation Security Officer position.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Prior to the hearing, the Agency filed a motion for a summary decision but Complainant did not respond. The AJ granted the Agency's request for a decision without a hearing but first dismissed claims 1 through 12 on the grounds that they were discrete acts that were untimely raised before an EEO Counselor. The AJ noted that Complainant contacted an EEO Counselor on December 28, 2011, yet claims 1 through 12 occurred more than a year before he contacted the counselor. The AJ indicated however that these claims would be considered as background evidence for Complainant's hostile work environment claim.
With regard to the remaining claims, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that with respect to claim 13, the Agency explained that there were no Scheduling Officer vacancies in December 2011, the Agency indicated that the position had last been advertised in January 2010 with an effective date of February 2010 and therefore was not available at the time Complainant indicated. Regarding claim 14, the Program Analyst position, the Agency indicated that Complainant applied for the position and made the certification list. Complainant was given a composite score of 14 based upon his resume. Complainant's resume score, however, resulted in his being ranked sixth out of the fourteen candidates deemed best qualified. Management decided, however, that only the top four candidates would be interviewed. The selectee for the position was chosen due to her experience with the Program Analyst position and her composite resume score of 21. The Selecting Official maintained that he was unaware of Complainant's prior EEO activity and did not receive any instruction from anyone to not promote Complainant.
With regard to claim 15, where Complainant maintains that he never received a response to his application for the Transportation Security Manager position, the Agency explained that according to the Human Resource Specialist, Complainant never submitted an application. Finally, with regard to claim 16, the denial of detail to the Supervisory Transportation Security Officer Position, the Agency indicated that Complainant along with four other applicants made written requests to be considered for the position. Five managers where tasked with rating the five applicants for the detail. Complainant was rated three out of five and the selectee was rated a four out of five. The Agency noted that one of the management team members rated Complainant four out of five but he rated the selectee a five out of five. One manager rated Complainant a five out of five. However, Complainant's total rating was 18, whereas the selectee's was 19.5, with three other applicants rating higher than Complainant. The Selecting Official indicated that he did not select Complainant because he did not have the highest score from the five member panel.
Complainant argued that he was harassed in reprisal for his prior EEO activity because he was qualified for positions yet was continually bypassed for promotion after he filed and settled his EEO complaint on September 25, 2010. He argued that the Area 6 Director and other managers placed him on a "Do Not Promote List" after his EEO activity.
The AJ found that assuming arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination. Further, the AJ found that Complainant failed to show that his qualifications were superior to those of the selectees. The AJ also determined that Complainant failed to provide any evidence that a "Do Not Promote List" existed. Finally, the AJ found that even when considering the incidents complained of in their totality, the incidents were mostly work related, and were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ erred when she issued a decision without a hearing. Complainant contends that genuine issues of material facts exist, namely, with respect to the existence of the "Do Not Promote List." He explains that while he did not have evidence at the time of the investigation of the existence of the "Do Not Promote List" and/or of the harassment that he suffered this in no way meant that he could not prove it at a hearing. He contends that there were several people willing to testify to various events that occurred. Further, Complainant maintains that the AJ erred in dismissing claims 1 -12 as untimely. He maintains that they were part of the Agency's ongoing harassment against him and therefore should not have been dismissed. He also contends that at the hearing he could have established his claim of a hostile work environment based on reprisal.
In response, the Agency contends, among other things, that the AJ's decision was correctly decided as no material facts existed and the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency contends that Complainant failed to establish that the Agency's reasons were pretext for discrimination. The Agency also maintains that Complainant failed to demonstrate that the incidents complained of were severe or pervasive enough to establish a hostile work environment. The Agency requests that its final order be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order. We find that the AJ correctly issued a decision without a hearing as there were no material facts at issue. Next, we find that claims 1 - 12 were correctly dismissed as Complainant failed to contact an EEO Counselor within the proscribed 45 day period and Complainant gave no reason for the delay of more than a year. Next, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination.
Further, we find the Agency clearly articulated the reasons why Complainant was not selected for the various positions. The Commission has long held that an agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of the selectees. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, Complainant, however, has failed to make this showing. Neither he nor the record provides any persuasive evidence that Complainant was so better qualified for the positions than the selectees that discrimination could be inferred from his non-selections. The record also does not show that the selecting officials considered Complainant's prior EEO activity with regard to the nonselections at issue.
Finally, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency in claims 13 - 16 were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Nor do we find that Complainant demonstrated that all of the incidents, when viewed together, were severe or pervasive enough to establish a hostile work environment.
With respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements, he has failed to show that he was subjected to discrimination. Accordingly, we find that the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. The Agency's final order is hereby 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
__5/6/15________________
Date
2
0120133006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120133006