Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Dec 4, 2014

0120130784 (E.E.O.C. Dec. 4, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120130784

Hearing No. 530-2008-00250X

Agency No. HS-07-TSA-000911

DECISION
Complainant filed an appeal from the Agency’s December 6, 2012 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s Final Order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead
Transportation Security Officer (LTSO) at the Agency’s Philadelphia Airport facility in
Philadelphia, Pennsylvania. On March 14, 2007, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of race (White), sex (male),
religion (Catholic), disability, age (over 40), and in reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:

1. On April 8, 2005, Complainant was assigned to baggage screening after
requesting to remain on checkpoint.

2. On April 20, 2005, Complainant’s request to be removed from baggage duties
was denied.

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3. On November 2, 9, and 15, 2005, Complainant’s requests to have his work
schedule adjusted to address family matters and to attend religious classes was
denied.

4. On October 24, 2006, management did not honor Complainant’s physician's
note dated October 23, 2006, in which the physician cleared Complainant to
return to full duty with no restrictions.

5. From November 2, 2005 to March 15, 2006, Complainant was prevented from
working overtime.

6. On November 6, 2006, Complainant was not promoted to Supervisory
Transportation Security Officer positions advertised under Vacancy
Announcement Numbers TSA-030801 and TSA-05-1235.

7. On October 30 and November 6, 2006, Complainant was informed by
management that employees on limited duty were not promoted.

8. From November 9, 2006 to March 15, 2007, management instructed
Complainant to provide acceptable medical documentation to support his return
to full-duty assignment.

9. On March 15, 2007, Complainant was placed on Leave Without Pay (LWOP)
status.

10. On April 12, 2007, Complainant was issued a Notice of Proposed Removal.

11. On September 15, 2007, Complainant’s employment as an LTSO was
terminated.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and
issued a decision without a hearing on October 4, 2012.

In her Decision, the AJ found that the record was adequately developed and that the material
facts were not in dispute. Specifically, the AJ found that Complainant failed to establish a
prima facie case of harassment on any basis. The AJ noted that Complainant was a member of
the protected groups identified in his complaint. Complainant is White, Catholic, and over 40
years of age at the time of the incidents described in his complaint.

The AJ found that Complainant failed to establish that he had a disability within the meaning of
the Rehabilitation Act because he did not show that he was significantly limited in any major
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life activity. The AJ noted that while the undisputed evidence indicated that Complainant had a
history of a back injury, the evidence showed that Complainant had performed the duties of his
position for many years.

The AJ found that Complainant did not present evidence that the acts described in his
complaint were motivated by Complainant’s race, religion, sex, or age. For example, the AJ
found that Complainant did not present evidence to show that his race, religion, sex, or age,
played any role in the Agency’s decision to assign him to the baggage screening area.
Baggage screening, the record shows, is a part of the tasks regularly performed by
Transportation Security Officers (TSO). The AJ found the undisputed evidence showed that
Complainant was selected for the baggage screening assignment because of his experience. The
AJ noted that regarding claim (3), Complainant’s request for a religious accommodation for his
family and religious needs was ultimately granted after some delay.

The AJ further found that Complainant did not present evidence that his medical documentation
was questioned by the Agency because of his race, religion, sex, or age. The AJ found the
undisputed evidence showed that directing Complainant to submit additional documentation
was inconvenient for Complainant, but nothing showed the requests were motivated by
Complainant’s race, religion, sex, or age. The AJ found the Agency officials received
conflicting medical documentation from Complainant’s physician and for that reason,
Complainant was asked to provide additional documentation to support his physician’s
assessment that Complainant was fully able to return to work without restrictions.

The AJ found that Complainant did show that the Agency’s policy regarding employees on
limited or light duty and overtime assignments, was unsupported. The AJ considered the
Agency’s explanation that the thought was to prevent employees returning from Workers’
Compensation leave from reinjuring or aggravating their prior injuries. The AJ found no
evidence that the explanation provided by Agency officials was a pretext to mask
discrimination. Additionally, the AJ found that this incident, in light of the totality of the
claims identified in Complainant’s complaint, still failed to rise to the level of harassment. The
AJ concluded that Complainant did not present evidence that he was subjected to harassment
based upon any prohibited basis.

With respect to Complainant’s nonselection claims, the AJ found that Complainant established
that he applied for the identified vacancy, and that Complainant was found minimally qualified.
The AJ considered the undisputed evidence showed that of 39 candidates who applied for
promotion, the Agency selected the top 21 candidates. The AJ found that the selected
candidates were both members of Complainant’s protected groups and also outside of
Complainant’s race, religion, sex, and age groups. The AJ considered the undisputed evidence
that the candidates were rated based on nondiscriminatory factors and that Complainant’s score
tied another candidate for the final selection. The AJ found the undisputed evidence showed
that the members of the selection board ranked the other candidate ahead of Complainant, and
for that reason, Complainant was not selected. The AJ found that Complainant failed to
present evidence that he was treated any differently because of his race, religion, sex, or age,
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than any other candidates who applied for the same position. The AJ also found that
Complainant did not show that his qualifications were plainly superior to those possessed by
the selected candidates.

The AJ found that Complainant established a prima facie case of reprisal discrimination when
he was placed on LWOP and subsequently terminated from his position. The AJ considered
the undisputed evidence that Complainant sought EEO counseling and four months later,
Complainant received notice that he was being placed on LWOP. Following that placement,
the AJ found that Complainant received the proposed notice of removal and some months later,
Complainant was officially terminated from his position. Even so, the AJ found that the
Agency articulated legitimate, nondiscriminatory reasons for its actions that Complainant failed
to show were false. Specifically, the Agency stated in the proposed removal notice and in its
removal decision, that Complainant was being removed for failure to follow directions.
Complainant, the AJ found, had been directed to submit additional medical documentation
pertaining to his ability to fulfill the full range of duties of his job. The AJ found that
Complainant did not present any evidence to refute the Agency’s position that Complainant
failed to follow this direction.

The AJ found the undisputed evidence showed that that Complainant’s termination resulted in
part from the Agency’s inability to determine that Complainant could fulfill the requirements of
his position based upon the medical documentation that Complainant did supply. The AJ found
that Complainant’s physician’s statement did not confirm the maximum weight that
Complainant could safely lift. The AJ found that the Agency articulated legitimate,
nondiscriminatory reasons for ending Complainant’s employment as a LTSO, that Complainant
did not show were a pretext to mask discrimination.

The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

On appeal, Complainant states that the AJ improperly issued her Decision without a hearing.
Complainant states that in her Decision, the AJ conducted an impermissible weighing of the
affidavits and that Complainant has been denied his day in court. Additionally, Complainant
challenges the AJ’s failure to issue an order regarding discovery, and requests that the
Commission remand the complaint for a hearing on the merits.

ANALYSIS AND FINDINGS
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,
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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. Dep’t of
Def., 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 Constr. 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 U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In a case of disability discrimination, Complainant must demonstrate that he is an “individual
with a disability.” An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities; (2) has a record of such
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an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). The
Commission has defined “substantially limits” as “[u]nable to perform a major life activity that
the average person in the general population can perform” or “[s]ignificantly restricted as to
the condition, manner or duration under which an individual can perform a particular major
life activity as compared to the condition, manner, or duration under which the average person
in the general population can perform that same major life activity.” 29 C.F.R.
§ 1630.2(j)(1)(i) and (ii). Factors considered in determining whether an individual is
substantially limited in a major life activity include: the nature and severity of the impairment;
the duration or expected duration of the impairment; and the permanent or long-term impact,
or the expected permanent or long-term impact of or resulting from the impairment. 29 C.F.R.
§ 1630.2(j)(2).

In the instant case, we find the AJ properly issued her Decision without a hearing. We find the
material facts are undisputed. We further find that by Order dated February 8, 2011, the AJ
properly denied Complainant’s Motion to Compel discovery responses from the Agency.

Disability

We find that Complainant denies that he is disabled. Complainant claims he was regarded as
an individual with a disability by the Agency. The record shows that the Agency officials
identified in Complainant’s complaint deny regarding Complainant as disabled. We assume for
the sake of argument, that Complainant was regarded as disabled by the Agency.

Reprisal

We find no dispute that Complainant engaged in protected activity in March 2004, and again
when he sought EEO Counseling in connection with the instant complaint on November 14,
2006. We assume for the purpose of our analysis, that Complainant’s prior EEO activity was
known to the Agency officials identified in Complainant’s complaint.

Harassment

We find the undisputed evidence shows that baggage screening was a typical and normal part
of Complainant’s job duties and that Complainant had been trained in baggage handling
procedures. We find that Complainant did not present evidence that the Agency’s reasons for
assigning Complainant to baggage screening were based upon Complainant’s race, religion,
sex, age, disability, or in reprisal for his prior EEO activity. We find this incident either alone
or in light of Complainant’s remaining incidents, fails to rise to the level of harassment.

We further find, as did the AJ, that Complainant was granted the religious accommodation he
sought regarding his regular days off to attend religious training. We further note that the
Agency’s reasons for denying Complainant’s requests for overtime are consistent in the
evidence and that Complainant presented no evidence to refute the Agency’s explanations.
Specifically, we find no evidence that employees returning to work on light or limited duty
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were allowed to perform overtime duty. The undisputed evidence shows that Complainant
returned to work in November 2005, following his recovery from an on-the-job injury that
occurred in April 2005. The Agency considered Complainant to be an employee recovering
from a compensable injury, and therefore not eligible for overtime. We find Complainant did
not present evidence that the Agency was motivated by discrimination when Complainant’s
requests for overtime were denied.

We find, as did the AJ, that drawing all reasonable inferences in Complainant’s favor,
Complainant failed to show that the actions he alleged were harassment, were motivated by
discrimination.

Nonselection

We find, as did the AJ, that the undisputed evidence shows that a wide variety of candidates
were selected for the 21 vacancies filled by the Agency in the identified promotion action. On
appeal, Complainant claims that he was not given a score by the same number of Board
members and that disadvantage likely resulted in his nonselection when he was tied for the last
vacancy with another candidate. For the sake of argument, we assume Complainant’s claim
regarding the Board’s scoring to be correct. Even if the Agency made a mathematical error in
computing the scores, we find nevertheless that Complainant has not presented any evidence
from which a reasonable inference can be drawn linking Complainant’s protected EEO
categories to the events of the selection process.1

Termination

The record shows that following Complainant’s return to work in November 2005,
Complainant was subjected to a series of incidents that ultimately led to his termination in
September 2007. We find the undisputed evidence shows that the Agency received
documentation from Complainant’s treating physician that contained conflicting information
regarding Complainant’s lifting restrictions. We find the undisputed evidence shows that
Complainant’s physician released Complainant to full duty and also documented that
Complainant had a lifelong lifting restriction based on back surgery from 1998. We find that
Complainant presented no evidence that the Agency was motivated by discrimination. We
find, as did the AJ, that the Agency sought to clarify whether Complainant could fulfill the 70
pound lifting requirement that was imposed upon employees in Complainant’s position after
Complainant was hired. We find the undisputed evidence shows that Complainant was asked
on multiple occasions to supply this information and that Complainant failed to do so.

1 We note that the AJ found Complainant was considered qualified (by the Agency) for the
promotion identified in his complaint and received an interview, plus a score along with the
other candidates. The record shows that the supervisory TSO positions also have the same 70
pound lifting requirement.
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Thereafter, the record shows that the Agency proceeded with the steps necessary to remove
Complainant from the Agency for failure to follow the directions he had been given. We agree
with the AJ that Complainant did not present evidence from which a reasonable inference could
be drawn that discrimination played any role in the Agency’s decision to remove Complainant
from the Agency in light of the medical information the Agency did have, which called into
question whether Complainant could fulfill the lifting requirements of his position.

We discern no basis upon which to disturb the AJ’s decision. We find the material facts are
undisputed and that Complainant failed to present evidence from which a finding of
discrimination could be drawn.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Decision finding no discrimination.

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
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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

Date
December 4, 2014