0120070174
09-11-2008
David Kelone, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
David Kelone,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070174
Hearing No. 210-2005-00152X
Agency No. HS 03-TSA-001317
DECISION
Complainant filed an appeal from an agency's final action dated September
18, 2006, finding no discrimination with regard to his complaint. In his
complaint, dated September 4, 2003, complainant alleged discrimination
based on sex (male) and age (over 40) when on January 2, 2003, he was
terminated from his employment during his probationary period as a
Supervisory Security Screener, SV-0019-G, at the Greater Peoria Airport
in Peoria, Illinois. The record indicates that at the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On July 13, 2006, the AJ, after a hearing,
issued a decision finding no discrimination, which was implemented by
the agency in its final action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that complainant
had established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for the alleged
termination. The AJ noted that on August 25, 2002, complainant was
hired by the agency as a Supervisory Transportation Screener subject
to the successful completion of a one-year probationary period.
The AJ indicated that on October 25, 2002, complainant's first line
supervisor issued him a written counseling memorandum advising him that
the supervisor received complaints from complainant's subordinates that
complainant had cursed and shouted at them while on duty. The supervisor
also counseled complainant about receiving personal phone calls while on
duty, reading newspapers at work, and micromanaging his subordinates.
Complainant, admitted that he counseled his subordinates forcefully
occasionally when their behavior was inappropriate.
The AJ also indicated that on November 15, 2002, complainant introduced
six Swiss army knives into the "sterile area," i.e., area beyond the
checkpoint in which passengers pass through the metal detectors and their
carry-on bags are screened, but before the gate, of the Peoria Airport.
Complainant, without consulting his supervisor, conducted a training
exercise on his own by concealing the knives in flower pots, toilet tanks,
and under floor mats to see if the screeners would detect them in their
sweep of the sterile area at the end of the second shift. On December 17,
2002, the supervisor counseled complainant about his performance issues,
including the foregoing incident and conflicts between his subordinates.
On December 24, 2002, the supervisor issued complainant a performance and
conduct evaluation for the period of September 1 to November 30, 2002,
with a rating of "marginally acceptable and requires some improvement."
The supervisor comments on the form noted complainant's cursing and
shouting at his subordinates. Subsequently, complainant's second level
supervisor issued complainant the termination letter of December 30,
2002, at issue, based on the foregoing incidents.
After a review of all the evidence, the AJ determined that complainant
failed to show by a preponderance of the evidence that the agency's
proffered reasons were pretextual. Upon review, the Commission finds
that the AJ's factual findings of no discriminatory intent are supported
by substantial evidence in the record. Furthermore, we find that even
if complainant is correct in his argument that the AJ made an error in
allowing certain witnesses to testify (something we do not decide in
this decision), such error was harmless.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
9/11/2008
__________________
Date
2
0120070174
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036