0120131864
08-04-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120131864
Hearing No. 510-2012-00024X
Agency No. HS-TSA-17809-2010
DECISION
On April 18, 2013, Complainant filed an appeal from the Agency's March 8, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Federal Air Marshal assigned to the Agency's Orlando Field Office - Tampa Resident Office in Florida, but detailed to the Joint Terrorist Task Force (JTTF) in Jacksonville, Florida. JTTF is a Department of Justice, Federal Bureau of Investigation (FBI) led task force that uses the collective resources of federal, state, and local agencies to prevent, preempt, deter, and investigate terrorist activities affecting the United States. ROI Exh. F-14, Complainant's Deposition, at 94. JTTF positions are generally for three years, with a possible one-year extension.
On November 8, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity under Title VII and the ADEA when on or about June 28, 2010, the Agency removed him from his JTTF detail assignment.1
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 Equal Employment Opportunity Commission Administrative Judge (AJ). He requested a hearing. Over Complainant's objections, the AJ granted the Agency's Motion for Summary Judgment and issued a decision without a hearing finding no discrimination, which the Agency adopted.
Complainant started his JTTF detail in Jacksonville, Florida around May 2007. Agency's Motion for Summary Judgment, Exh. 2. While in the detail, he was supervised by two successive FBI supervisors, and the Agency maintained administrative supervision over him. The latter FBI supervisor (FBI S2) started supervising Complainant sometime between June 2009 and January 2010. ROI, Exhs. F-1 at 7, F-3 at 1. On April 16, 2010, the Agency denied Complainant's request to extend his detail for a year. ROI, Exh. F-1, at 9.
The AJ found that FBI S2 noted that while Complainant's work product was excellent, he had an ongoing inability to get along well with his co-workers. Specifically, FBI S2 related that Complainant believed his JTTF cohorts spoke negatively about him, refused to work with those he thought did so, and openly criticized some of them. Complainant countered that he was asked to socialize more, but denied openly criticizing JTTF members and refusing to work with them. ROI, Exh. F-3, at 4.
On or about June 25, 2010, FBI S2 received a phone call from the St. Augustine Beach, St. John's County police registering a complaint that Complainant got into a verbal altercation with a police officer. Recounting FBI S2's statement, the AJ found that he reported to Complainant's first line Agency supervisor (Agency S1) (on June 28, 2010) that Complainant refused to cooperate with FBI S2's efforts to get information from him regarding the incident, and requested that the Agency remove Complainant from the JTTF given his insubordinate behavior. This account is corroborated by the statement of Agency S1. FBI S2 stated that when he asked him what happened on the telephone Complainant immediately got defensive, stated these were his cases, he did not have to tell him anything, and continued to refuse to tell him anything about what transpired between the police officer (St. John's) and himself.
In his affidavit, Complainant countered that that he was not disrespectful when he responded to FBI S2's question by asking why he was asking him, and when he realized FBI S2 was serious, he answered all his questions in their 20 to 30 second telephone conversation. In December 2010, after his detail to JFFT was terminated, Complainant signed off on an interview statement he made regarding the matter. Therein, Complainant stated he asked FBI S2 why he was asking, these are my cases, and FBI S2 responded he could take the cases away. Complainant also stated that in response to FBI S2's question about the events in St. Augustine, he explained to him what he did. He added that FBI S2 did not ask direct enough questions, and should have been more direct about what he wanted.
The AJ found that Complainant did not make out a prima facie case of reprisal discrimination because he did not show that he engaged in protected EEO activity. The AJ went on to find that it was undisputed Complainant exhibited problems interacting with his JTTF co-workers.
The AJ found that Complainant contended that the Agency discriminatorily removed him from his detail, and Complainant not cite FBI S2 as an alleged discriminating official. At his deposition, Complainant explicitly stated he was accusing Agency officials of removing him from his detail, not anyone affiliated with the FBI, including FBI S2. Complainant's deposition, at 61 - 62. The AJ found that nevertheless, it was FBI S2 that called for Complainant's removal from the JTTF after he determined that his refusal to answer questions about the June 2010 St. John's police constituted insubordination, and the record did not show FBI S2 was influenced by Agency officials. The AJ concluded that there were no genuine issues of material fact which would necessitate a hearing.
In opposition to the Agency's Motion for Summary Judgment, and on appeal, Complainant argued that he engaged in opposition EEO activity with the Agency in May 2010. Specifically, he previously applied with the Agency for a JTTF reassignment. After not getting selected, on May 3, 2010, he contacted an Agency Human Resources official, and the same day followed up by sending her an inquiry email. Among the questions asked was whether there was any personal data in the application packages, aside from resumes, including but not limited to race/national origin, and age, and questioning the advice he was given that the Agency has a policy of not permitting transitioning from one ground based assignment to another (Complainant's regular assignment was flying. The JTTF detail was ground based). Complainant gave the Human Resources official permission to share his inquiry, and he believed word got to his Agency chain of command. According to Complainant, he met with Agency S1 and two other Agency managers on May 7, 2010, and one of the managers (higher in the chain of command) asked if he felt discriminated against and had a lawyer. Complainant stated he responded to the questioner and Agency S1 that their actions could be perceived as retaliation and discrimination.
In opposition to the Agency's Motion for Summary Judgment and on appeal Complainant also argues that in response to FBI S2's inquiry about the events in St. Augustine, after realizing it was a serious inquiry, he gave a complete recount of the day's events, and at no time refused to answer questions.
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). 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. We will explain this further below.
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). Complainant must initially establish a prima facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Construing all justifiable inferences in Complainant's favor, we find that he alleged that he engaged in opposition EEO activity -- inquiring in May 2010, with the Agency whether protected bases were related to the JTTF reassignment decisions, and shortly thereafter being asked by an upper level Agency supervisor if he had a lawyer and felt discriminated against, and replying to him and Agency S1 that he felt retaliated and discriminated against.
Assuming without finding that Complainant made out a prima facie case of reprisal discrimination, the Agency articulated a legitimate, nondiscriminatory reason for terminating his detail. Specifically, the FBI requested that the detail be terminated because Complainant refused to cooperate with FBI S2's inquiry about a complaint by a St. Johns police officer that Complainant got into a confrontation with him.
In an attempt to show pretext, Complainant contends that he did cooperate. Nevertheless, construing all justifiable inferences in Complainant's favor, we find that regardless of his perspective, there is no genuine issue of material fact that FBI S2 did not believe Complainant cooperated. Complainant concedes that when questioned, he countered to FBI S2 by saying "why are you asking, these are my cases," that FBI S2 did not ask direct enough questions, and should have been more direct about what he wanted. Further, Complainant concedes that in response to his remark that these were his cases, FBI S2 said he could take them away, and some days later FBI S2, who was his friend, told him he was struggling with the decision (to terminate the detail) all weekend long.
The Agency terminated the detail at FBI S2's behest. The May 2010 EEO activity Complainant argued about in his opposition to summary judgment and on appeal did not involve FBI S2, and Complainant does not contend he was aware of it. As the AJ found, Complainant does not contend FBI S2 had a discriminatory motive. Complainant has failed to prove pretext or discrimination.
AJ's Ruling Denying Complainant's Amendment
On November 7, 2011, effective for five non-consecutive days from November 22, 2010 through December 3, 2011, the Agency suspended Complainant for failure to follow instructions in connection with his June 2010 incident with FBI S2. The Agency officials who proposed and decided on the suspension were not the same Agency officials who Complainant alleged were responsible for the termination of his detail.
Complainant challenged the suspension in an Agency internal grievance procedure. On March 21, 2010, the Agency official advised that she understood that the suspension was possibly part of another action pending before the Agency, and once a grievance is put forward in another forum, such as a civil rights complaint, it is handled there. Complainant, who was represented by counsel, did not object. Instead, on the same day he filed a motion with the EEOC AJ to amend her complaint to include his suspension.
In denying the motion, the EEOC AJ recounted that the AJ's acknowledgment and order (which Complainant's attorney received on or about January 15, 2012), provided that pursuant to 29 C.F.R. � 1614.106(d), the Complainant may move to amend his complaint to add claims that are like or related to the original complaint, and in order to do so, must submit a motion as early as possible to the AJ stating the new claim, the date(s) when it occurred, and why it is like or related to the original complaint. The Complainant's motion to amend was based on retaliation and was cryptic, alleging the Agency imposed discipline regarding his dismissal from JTTF, and the suspension was imposed in retaliation for filing the instant complaint. The AJ noted that Complainant failed to provide the date of when the when the alleged retaliatory action occurred nor demonstrate how the suspension was like and related to the original claim. The AJ found it appeared the discipline was issued during the investigative stage of the instant complaint, and Complainant waited four months after the discipline was issued, at the closing of discovery, to move to amend his complaint, beyond the 45 calendar day time limit to initiate EEO counseling. The Agency actually completed the investigation by September 2011.
On reconsideration of Complainant's motion, the AJ conceded that Complainant cited a case that the 45 calendar day time limit does not apply to subsequent attempts to amend a complaint. She distinguished the case on the grounds that it applied to a situation where the request to amend was made prior to the completion of the investigation, and noted Complainant was attempting to amend his complaint post-investigation regarding a discrete personnel action. The AJ mistakenly wrote that Complainant could have amended his complaint during the investigation since he was aware he was disciplined since November 2010 (it was actually November 2011). The AJ concluded that she acted within her discretion in denying Complainant's motion to amend.
We agree the AJ acted within her discretion in denying Complainant's motion to amend. While not deciding on whether the 45 calendar day time limit applies, Complainant did not file his motion to amend as soon as possible after the acknowledgment and order, and the original motion was cryptic, not meeting the AJ's procedural requirements. The AJ did not abuse her discretion in denying the motion to amend.
The Agency's final order 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
August 4, 2015
__________________
Date
1 Complainant also alleged discrimination based on his age (45), and sex (while perceived as gay, he is straight). In his Opposition to the Agency's Motion for Summary Judgment and on appeal, Complainant, represented by counsel, only raised and pursued the basis of reprisal discrimination. He dropped the bases of age and perceived sexual orientation discrimination.
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0120131864
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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