0120071264
04-01-2009
Cornelius Moore, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Cornelius Moore,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120071264
Agency No. HS060041
DECISION
On January 5, 2007, complainant filed an appeal from the agency's December
4, 2006 final agency decision (FAD) 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Transportation Security Screener at the agency's Lambert- St. Louis
International Airport facility in Saint Ann, Missouri. On July 30, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of his race (African American) and color (black)
when:
1. on April 15, 2004, management did not select him for the position
of Lead Transportation Security Screener (LTSS);
2. on October 18, 2004, management did not select him for the
position of Supervisory Transportation Security Screener (STSS); and
3. on October 22, 2004, management did not select him for the
position of LTSS.
At the conclusion of the investigation, complainant was provided 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 final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged. On appeal,
complainant reiterates his contention that he was subjected to unlawful
race and color discrimination. Complainant also contends that the agency
"impermissibly used information from a mediation session in evaluating
[the instant claims]." (Complainant's Brief on Appeal, 1).
ANALYSIS AND FINDINGS
Initially, we find that a number of management officials made improper
reference in their affidavit testimony to statements allegedly
made by complainant in the course of mediation. Indeed, the agency
improperly referred to those same statements in its FAD. We note that
confidentiality is considered one of the "Core Principles" of Alternative
Dispute Resolution (ADR). "Parties who know that their ADR statements
and information are kept confidential will feel free to be frank and
forthcoming during the proceeding, without fear that such information
may later be used against them." See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614. (EEO MD-110), 3-16, 3-17
and Appendix H (Nov. 9, 1999). Further, EEO MD-110, 3-14 discusses an
agency's obligation to provide training to managers and supervisors in
the principles of ADR. Clearly, through this case, it is clear that
further training is needed as agency managers and even the agency EEO
office improperly allowed the improper references to statements made
during mediation. Because confidentiality is essential to the success
of all ADR proceedings, the Commission will not consider any statements
made during mediation in this decision.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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 Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we find that assuming, arguendo, complainant established a prima
facie case of race and color discrimination, the agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, complainant was not among the best qualified applicants
for any of the positions at issue. The record reflects that, with
respect to the LTSS position, complainant was one of approximately 250
applicants for 17 available positions. (Report of Investigation, F-5).
The Screening Manager (SM) stated that the criteria for the LTSS
position included "recommendations from their current Supervisor,
work habits, attendance records, disciplinary records, [and] overall
work attitude." (R.O.I., F-2). With respect to the STSS position, the
record shows that complainant was one of 42 applicants referred to the
selecting official, but that he was not among the 15 selectees. The SM
stated that complainant was not selected for the any of the advertised
positions because "he showed very little leadership skill as a screener
[and he] was not highly recommended by his supervisors based on his
average work habits." (R.O.I., F-2). Finally, as to the October 22,
2004 nonselection, the record shows that complainant was not eligible for
the LTSS position at issue because it was a non-competitive selection
and complainant did not meet the criteria. Specifically, complainant
was not in the correct pay band to be considered for a non-competitive
selection to the LTSS position. (R.O.I., F-8; F-10).
We find that complainant has proffered no evidence to show that any of
the agency's actions were motivated by discriminatory or retaliatory
animus. We further find that complainant has not shown that the agency's
articulated reasons for his nonselections were pretextual. Accordingly,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 1, 2009
Date
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0120071264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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