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

Equal Employment Opportunity CommissionJul 25, 2014
0120122746 (E.E.O.C. Jul. 25, 2014)

0120122746

07-25-2014

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


Complainant,

v.

Jeh Johnson,

Secretary,

Department of Homeland Security

(Transportation Security Administration)

(Federal Air Marshal Service),

Agency.

Appeal No. 0120122746

Agency No. HS-TSA-01349-2011

DECISION

On June 5, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 11, 2012,1 concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 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 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 Federal Air Marshal with the Federal Air Marshal Service out of the Chicago Field Office, in Chicago, Illinois.

On July 5, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African-American) and age (54) when on February 4, 2010, he was forced to retire (constructive discharge) from the Agency.

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). In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.

Complainant started working for the Federal Air Marshal Service in May 2002. He contended that he was automatically qualified to be a supervisor there because of his prior service as a supervisor at the Federal Bureau of Prisons, but the Agency did not recognize this. He stated that he was forced to retire because he was not given the same promotional opportunities as younger, Caucasian Federal Air Marshals, and was repeatedly overlooked for supervisor positions.

In its FAD, the Agency found that Complainant had not applied for a supervisory position since 2005 and 2006, and the record did not demonstrate he was not given the same promotional opportunities as younger Caucasian Federal Air Marshals. The Agency recounted management statements, including Complainant's acting supervisor, that when Complainant put in for his sudden retirement he said everything was fine, he was ready to retire and enjoy himself, had enough, and he planned to travel and wanted to do so without a gun. The Agency concluded that Complainant produced no evidence demonstrating that that the Agency subjected him to intolerable working conditions compelling a reasonable person to resign. Complainant countered that he told his acting supervisor that he was retiring because he was not given promotional opportunities, and that he was subjected to discrimination regarding the denial thereof.

ANALYSIS AND FINDINGS

The issue in this case is whether Complainant was discriminatorily constructively discharged. The Commission has adopted a three-pronged test for establishing a constructive discharge. Complainant must show that: (1) a reasonable person in his position would have found the working conditions intolerable; (2) the conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) complainant's involuntary resignation resulted from the intolerable working conditions. Taylor v. Air Force and Army Exchange Service, EEOC Request No. 05900630 (July 20, 1990).

Complainant has not shown that the denial of opportunities to be promoted to supervisor constituted intolerable working conditions. See Olsen v. Department of Defense Army & Air Force Exchange Service, EEOC Request No. 05A10104 (Mar. 22, 2001)(complainant was not constructively discharged where he was denied promotions and received lower promotion potential ratings than he deserved due discriminatory animus, but was assigned to a position

within his abilities). Further, there has not been a finding of discrimination regarding the failure to promote Complainant.2

The FAD 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

July 25, 2014

__________________

Date

1 The typewritten date on the FAD is May 11, 2011. The year was a typo, and the date was actually May 11, 2012.

2 In Nelson v. Department of Homeland Security, EEOC Appeal No. 0120070841 (Jan. 25, 2008), the EEOC found that Complainant failed to prove that he was discriminated against when he was not promoted [to Supervisory Federal Air Marshal in 2005] located in the Atlanta and Dallas Field Offices.

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0120122746

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120122746