0120133118
09-22-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
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. 0120133118
Hearing No. 480-2012-00379X
Agency No. HS-TSA-00117-2011
DECISION
Complainant filed an appeal from the Agency's July 30, 2013, final order concerning his equal employment opportunity (EEO) complaint. He alleged 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO) at the Agency's Los Angeles International Airport (LAX) facility in Los Angeles, California.
On October 25, 2010, Complainant contacted an EEO Counselor. On February 5, 2011, Complainant filed an EEO complaint, alleging that the Agency discriminated against him, and subjected him to a hostile work environment on the bases of race (African-American), color (Black), and reprisal for filing the instant complaint, when:
1. Prior to September 13, 2010, the Deputy Federal Security Director (DFSD) did not meet with Complainant to advise him of his rights before issuing a Proposed Termination Letter, which Complainant alleges he was "forced" to sign;
2. On September 13, 2010, the DFSD's behavior towards Complainant was inappropriate and disrespectful;
3. Between October 2010 and December 2010 and based on disability (cervical disc protrusion and shoulder tendon impingement), Complainant was not offered Family and Medical Leave Act (FMLA) leave and was required to use sick and annual leave for his time off of work; and
4. On December 1, 2010, while off from work under a doctor's care, the agency terminated Complainant's employment.
The pertinent record shows that Complainant is African American and black in color. Complainant was a union representative for the California chapters prior to his removal. This was his first complaint. He works as a TSO. At all times relevant to the complaint, Complainant was assigned to Terminals 5 and 6. The record does not show that Complainant had any prior disciplinary action.
Claims 1- 2 Complainant not given advance notice and disrespected
On July 22, 2010, the Transportation Security Manager (Caucasian, white) sent an email to the Elite Mobile Screening Team (EMST) Coordinator, notifying her about available overtime in Terminal 4 (T4) between July 29, 2010 and August 7, 2010.
The Agency follows a process for requesting overtime. The TSOs were required to sign up for the overtime through EMST. When employees came into the EMST Office and inquired about overtime, they were directed to the binder, where they were able to sign up for the available slots. A roster sheet was maintained for each day that overtime was requested. The sheet specified the terminal location, work hours and available slots. Each roster sheet would then be placed kept in the overtime binder. A member of the EMST staff would email the manager, who requested the overtime assistance, on the day before the overtime was to be performed, with the names of the individuals who signed up for overtime. Employees had been told that all out of terminal overtime needed to be authorized and scheduled through EMST.
Complainant signed up for the out-of-terminal overtime shift through EMST and worked an authorized overtime shift in T4 on August 6 and 7, 2010.
Complainant reported to Supervisory Transportation Security Officer (STSO) (African American, black) (S1) in T4 on his next regular day (August 13, 2010). He informed her that he was working an out-of-terminal overtime shift from 0600 to 1230 hours. Since S1 did not need additional assistance, S1 assigned Complainant to assist another manager, STSO (Caucasian, white) (S2), in the baggage department.
Shortly thereafter, S1 signed Complainant's overtime justification and submitted it for approval to the Transportation Security Manager (TSM) (Caucasian, white) (S3). The TSM (S3) had not listed any overtime work with EMST in T4 for August 13, 2010. On that basis, S3 refused to approve complainant's overtime. She also informed the Terminal 6 (T6) managers (Caucasian, white) of the situation.
S1 returned to Complainant and asked who authorized his August 13 overtime. He told her he had prior authorization. This was not true. Complainant acknowledged that he did not sign up through EMST for the August 13, 2010 overtime in T4. Report of Investigation (ROI) at 312-313. Complainant then said that S3 had orally approved the overtime during a telephone conversation with Complainant in July, and that S2 had given complainant permission to work.
On April 17, 2010, Complainant was given a Summary of Pre-Decision Discussion. He was informed that he worked an unauthorized shift in T4 and made untruthful statements regarding who authorized his overtime. In a written response submitted on August 17, 2010, Complainant repeated that he had received permission to work overtime by the TSM or other T4 supervisors and that he had scheduled it through the EMST office.
In late August or early September of 2010, the TSM (S3) proposed to the DAFSD (Caucasian, white) (S4) and Assistant Federal Security Director (AFSD) (Hispanic) (S4) that Complainant be removed for lack of candor. ROI 000246. After a review of the record, S5 (Caucasian, white), who had been assigned the review, issued a notice of proposal for lack of candor. ROI 304-310. Complainant contends that during the meeting, S5 "pressured" and "coerced" him into signing the document and spoke to him in a "demeaning" tone.
Claim 3 Not offered FMLA leave
Complainant suffered an injury to his shoulder on October 21, 2010. On that same day, Complainant filed a CA-1 form with the Department of Labor, Office of Worker's Compensation (OWCP) to report an injury to his shoulder. ROI 294-297. Various doctors placed complainant on temporary disability for the period between October 22, 2010 and December 2, 2010. ROI 166. On November 3, 2010, the Human Resources Specialist disapproved Complainant's request for continuation of pay (COP) because she believed his medical documentation did not substantiate payment of COP. ROI 166-167, 294-297.
Between October and December of 2010, Complainant did not request FMLA leave or submit an OPM form 71 requesting such leave. ROI 168.
Claim 4 Termination of employment
On November 15, 2010, Complainant and his representative provided an oral reply to the proposed removal to the AFSD (Hispanic, "medium skin color") (S5). ROI 271-274, 312-314 and 514. During his response, Complainant admitted that he knew the proper procedures for signing up for out-of-terminal overtime and that he did not sign up for the August 13, 2010 overtime through EMST. Complainant contended that "sometimes the terminal's STSO or Managers give verbal authorization." ROI 313. Complainant maintains that others (who were not of his race or color) were allowed to have a manager's meeting in accordance with the Agency's management directives. He stated that the deciding official (Hispanic) wrongfully terminated Complainant without properly reviewing Complainant's file to see if the proper steps were taken and to have a meeting in the manager's office in an attempt to resolve matters. The record also includes excerpts from Appendix A of the TSA Management Directive No. 1100.75-3 (Addressing Unsatisfactory Performance and Conduct Problems.) Complainant maintains that "lack of candor" is not an offense where removal is permitted for a first offense.
The record shows that others, who were not African-American, committed offenses and the Agency did not terminate them. Comparator 1 caused a checkpoint breach in 2010. Comparator 2 was placed on administrative leave after he was caught and arrested for theft. Comparator 3 was not terminated after failing to re-certify, three times. The record shows, however, that other employees have been terminated for other reasons, including lack of candor. Three of the four were African-American. The fourth was Hispanic. There was no evidence that any Caucasian employees had been terminated for lack of candor or charged with lack of candor.
On November 23, 2010, S5 issued the Notice of Decision on Proposed Removal. ROI 316.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on July 9, 2013.
The AJ's Decision
The AJ found that the record was appropriate for summary disposition. She found the Agency's reply to Complainant's Motion to Dismiss "provided Complainant with a comprehensive statement of the undisputed material facts." The AJ reasoned that "since both parties have requested summary judgment, since the record has been fully developed, and since there are no material facts in dispute, it is appropriate to issue this summary judgment decision, without a hearing."
The AJ found that "there is no evidence in the record of any non-African American employee who committed an infraction of comparable seriousness who was not terminated." She continued, "Indeed, all employees accused of a lack of candor were given a Notice of Proposed Removal, including a Hispanic employee." The AJ next concluded that the employees whom Complainant identified as receiving favorable treatment "were not similarly situated because they did not commit offense of comparable seriousness."
The AJ also noted that one of the individuals to whom Complainant compared himself was African-American.
With regard to the harassment claim, the AJ found that, construing the evidence in the light most favorable to Complainant, the alleged acts of "harassment were not sufficiently severe or pervasive to have created a hostile working environment, which by definition, must comprise an environment created or condoned by management, permeated with discriminatorily motivated intimidation, ridicule and insult, sufficiently severe and pervasive to alter the conditions of Complainant's employment." [verbatim]
The AJ found that Complainant had not presented sufficient evidence, and there is none available in the record, that he was harassed on the basis of his race, color, EEO activity, or disability.
With regard to the disability claim, the AJ found Complainant to be a qualified individual with a disability, for purposes of the decision. She noted that Complainant apparently did work for several weeks after his injury and was able to perform the essential functions of his position. The AJ found that "Complainant's disability did not play any part in the removal decision because it was made prior to the date of injury." The AJ noted that Complainant did not contend he had shoulder or neck pain or disability prior to October 21, 2010. With regard to the FMLA claim, the AJ found that there was no evidence of any discrimination in the Agency's handling of his injury or leave claims. The AJ granted summary judgment in favor of the Agency.
The Agency adopted the AJ's decision.
This appeal followed.
ANALYSIS AND FINDINGS
We must 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). 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.
On appeal, Complainant argues that it was undisputed that 4 out of the 5 individuals listed as terminated were African-American and that another African-American filed an EEO complaint against the Agency for the same reason during the same period at issue. He points to other infractions that were serious, but the employees were granted a more lenient penalty. He argues that the overtime signup is voluntary and not a requirement and that the EMST staff would shred roster sheets on a regular basis at the end of each month.
On appeal, the Agency asserts that the decision should be upheld because "the record does not contain a genuine issue of material fact."
Disparate Treatment - Race, Color, Reprisal and Disability
Section 717 of Title VII that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination" because of race, and color. Section 717 applies to the federal sector. Similarly, a complainant may establish reprisal by showing that he or she participated in the EEO process and adverse action was taken against him or her because of the reprisal. A prima facie case of disability discrimination requires a showing that: (1) he or she is an individual with a disability; (2) he or she was "qualified" for the position held or desired; (3) he or she was subjected to adverse employment action by the agency because of his or her actual or perceived disability. To prevail in a disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
For purposes of our analysis, we will presume that Complainant established his prima facie claims with regard to his race, color and disability claims. However, the prima facie inquiry may be bypassed, where 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 (1983).
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Agency states that it provided Complainant with due notice and the opportunity to respond. With regard to claim 2, the record does not show an adverse action. With regard to claim 3, the Agency stated FMLA leave was not provided because Complainant did not request.
With regard to claim 4, the Agency stated that Complainant was terminated because of its determination that Complainant worked unauthorized overtime and displayed a lack of candor in responding to managerial requests about his authorization to work the overtime. The weight of the evidence clearly establishes that the decision to proposal Complainant's removal predicated on those reasons.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
In this case, Complainant did not provide any evidence that challenged the Agency's stated reasons that it removed Complainant because of his lack of candor. Complainant did not offer sufficient evidence to raise a genuine dispute of material fact with regard to the stated reasons and whether they were a pretext for unlawful discrimination and/or retaliatory animus.1
Harassment
Finally, to establish a claim of harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Looking at all of the evidence in the light most favorable to Complainant, we agreement with the AJ that there is simply no relevant evidence that would show that any of the subject actions were based on unlawful discrimination and/or retaliatory animus.
After a careful review of the record, we agree with the conclusion of the AJ that there was no genuine dispute of material fact with regard to the claims in the instant complaint. Therefore, we find that judgment as a matter of law for the Agency was appropriately entered in this case.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order for the reasons stated herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2015
__________________
Date
1 With regard to reprisal, the AJ referenced the U.S. Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), for the proposition that Complainant must specifically show that "but for" his EEO activity, he would not have been fired. We note that the Nassar standard applies to private sector claims, but not to claims brought by federal employees under Section 717 of Title VII. See Petitioner v. Department of the Interior, EEOC Petition No. 0320110050 (July 16, 2014). Nevertheless, even applying the correct legal standard, we conclude that the evidence of record does not support a finding of unlawful reprisal.
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