0120072672
02-18-2010
James E. Burroughs, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
James E. Burroughs,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120072672
Hearing No. 520-2077-00179X
Agency No. HS06TSA001697
DECISION
On May 21, 2007, complainant filed an appeal from the agency's April 16, 2007 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as a Federal Air Marshal (FAM) at the agency's Newark Field Office facility in Newark, New Jersey. As a condition of his employment, complainant is required, as are all employees in the FAM position, to adhere to a program of physical fitness.1 A part of the agency's physical fitness program requires that complainant participate in quarterly physical fitness assessments consisting of four exercises: one minute sit-ups, one minute push-ups, pull-ups, and a timed 1.5 mile run. Employees are assigned a rating from "excellent" to "very poor" and awarded up to 10 points for each exercise, with points adjusted for age and sex. To achieve a score of "excellent" in the 1.5 mile run, male FAM employees between 30 and 39 years of age are required to complete the run in less than 13 minutes and 43 seconds (13:43). The same employees who complete the run in more than 14:52 receive a "very poor" score in the 1.5 mile run. From June 2005 through June 2006, complainant's scores, based on his age, for the 1.5 mile run and pull-ups were "poor" or "very poor", while his scores for push-ups and sit-ups were either "good" or "excellent." Complainant completed the 1.5 mile run in June 2005 in 14:28, (a "poor" score) but in all other quarters from January 2005 through June 2006, complainant needed more than 18 minutes to finish the 1.5 mile run ("very poor"). In his performance evaluation for fiscal year 2005, complainant's supervisor, S1, noted that "During this period [complainant] successfully met performance standards. . . . [Complainant] participates in the [Quarterly Fitness Assessments] each quarter and has been made aware that there is room for improvement there. He is striving to improve his level of fitness and is a dependable and responsible employee."
Complainant states he was informed by S1 that his weight and slow run times were taken into consideration when determining what assignments and opportunities complainant would be provided. Complainant alleges that he was denied international flight assignments, where the opportunity to earn valuable overtime, as well as schedules that involved non-duty hours while in pay status (or other desirable scheduling) occurred more frequently than they did on domestic flight assignments. Assignment to special details, including missions in the aftermath of Hurricane Katrina, were also awarded, to complainant's knowledge, based in part on physical training (PT) test scores.
On May 12, 2006, complainant filed an EEO complaint alleging that he was discriminated against on the bases of disability (perceived physical weight and anaerobic capability) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From July 2005 to April 2006, complainant was denied pay raises on several different occasions by his supervisor (S1);
2. From July 2005 to April 2006, complainant was denied overtime pay and favorable schedules by S1;
3. From July 2005 to April 2006, complainant was twice denied special detail assignments by S1;
4. From July 2005 to April 2006, complainant was continuously embarrassed in front of his co-workers by disparaging comments made by S1;
5. From July 2005 to April 2006, complainant was denied assignments on international flights by S1.
6. From July 2005 to April 2006, complainant was denied bonus pay by S1.2
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). Complainant requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over the complainant's objections, issued a decision without a hearing on March 29, 2007.
In her decision, the AJ found that complainant did not establish a prima facie case of discrimination based on reprisal because complainant had not participated in the EEO process or participated in any other protected activity, prior to the time the incidents described in the complaint occurred.
The AJ further found that complainant did not establish a prima facie case of discrimination under the Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. because nothing in the record showed that the agency regarded or perceived complainant as substantially impaired in any major life activity. Further, the AJ noted that complainant failed to identify his height and weight, which precluded any consideration that complainant might meet the definition of "morbid obesity." Based on a totality of the circumstances presented in the record, the AJ found that complainant was not regarded as disabled by agency officials.
Moreover, inasmuch as the AJ found that complainant was not a member of any group protected by the Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., the AJ found that complainant failed to state an overall claim of harassment. Additionally, the AJ found that the conduct complained of is not severe or pervasive enough to create an objectively hostile work environment based on disability or reprisal.
The agency subsequently issued a final order fully implementing the AJ's finding that complainant failed to prove that he was subjected to discrimination as alleged.
On appeal, complainant submitted to the Commission, a copy of the same statement, (dated March 26, 2007), that he provided to the AJ in opposition to the AJ's notice of intent to issue a decision without a hearing. Therein, complainant states that management set forth in the statements of complainant's supervisors that complainant's weight and slow run times were the reason that complainant was denied on several occasions, pay raises, special details, overtime and favorable schedules. Complainant states that the record shows a clear correlation between how he was perceived by management and the different treatment he claims he received compared to the raises and bonuses, of his peers who are assigned to international travel.
Complainant also notes that after he initiated the EEO complaint process, and specifically after the report of investigation was released, he was subjected to reprisal and that he has filed a formal complaint, addressed to the Special Agent in Charge of the Newark Field Office.
ANALYSIS AND FINDINGS
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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
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 Construction 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. Texas Department of Community 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 Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.
In the instant case, we find the AJ properly issued her decision without a hearing as there are no genuine issues of material fact in dispute.3 The record shows that S1 denied complainant the opportunity to be assigned to international flights and made decisions regarding pay bonuses based on concerns S1 had regarding complainant's scores based on his physical fitness tests. In his affidavit, S1 responded as following, in pertinent part, to the investigator's questions regarding the reasons he denied complainant assignment to international flights:
We have a chart that is based on a certain age that is used regarding run times. I think [complainant] had to be around thirteen minutes and he was up around twenty-one or twenty-two. This was not written in stone but I gave this to [complainant] as where he needed to be. . . Requesting that he improve his physical condition was due to my concern.
We find the evidence shows that S1 made operational decisions based upon complainant's PT test scores, about which S1 had concern. We find complainant has failed to show that the concerns S1 had about his physical fitness scores were a pretext for prohibited discrimination.
Complainant also alleged that he was denied two special detail assignments during the timeframe at issue. A review of the record reveals that complainant alleges that he was denied two domestic details: September 2005 Hurricane Katrina Response and a ground based airport assignment.4 With regard to the Hurricane Katrina Response, complainant's second level supervisor (S2) stated that there were two selectees for this detail. S2 stated that the decision was made based on availability and noted that the two FAMs selected were in the office that day and were not scheduled to fly. With regard to the ground based airport assignment, S2 stated that there was an interview process for this assignment and noted that complainant was considered for the assignment. However, S2 stated that preference was given to the top two interviewees. In his affidavit, in connection with the details complainant states that S1 told him to lose weight and run faster. Upon review, we find complainant failed to show that the agency's articulated reasons for its actions were a pretext for discrimination.
We further find that in complainant's complaint, he has both described an overall claim of harassment that includes alleged discriminatory comments from S1, as well as a number of discrete incidents (denied specific overtime opportunities, detail assignments, annual pay raises, etc.). As discussed above, the Commission has found that the agency presented legitimate, non-discriminatory reasons, which complainant has failed to show were a pretext for discrimination, for its actions surrounding the denial of overtime, denial of international flight assignments, denial of special detail assignments, pay raises and bonuses. Thus, the only remaining incident of harassment at issue concerns the allegation that from July 2005 to April 2006, complainant was continuously embarrassed in front of his co-workers by disparaging comments made by S1. Upon review of the record, the Commission finds that the alleged incidents were not sufficiently severe or pervasive to rise to the level harassment based on his alleged disability or in reprisal for prior protected activity.
Lastly, we note that to the extent complainant is alleging that he was subjected to additional incidents of discrimination beyond the incidents identified in the present complaint, he is advised, to the extent he has not already done so, that he should contact an EEO Counselor should he wish to pursue such additional claims.
After a careful review of the record before the Commission, we hereby AFFIRM the agency's final decision, finding no discrimination.
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
February 18, 2010
__________________
Date
1 The record includes the agency's physical fitness program policy effective May 11, 2004, and the policy for physical fitness that became effective on August 10, 2005. Both policies required the same quarterly physical training (PT) testing.
2 Complainant's complaint described the alleged discriminatory treatment as a continuing violation and an overall claim of harassment.
3 We do not address in this decision whether complainant is a qualified individual with a disability.
4 Complainant also lists four other details in his affidavit: a March 2006 detail to the Winter Olympics, a July 2006 international detail to the World Cup Soccer event, a July 2006 Mass Casualty Disaster Drill at the Newark Airport, and a July 2006 detail to Cyprus concerning an evacuation from Lebanon. We note that the Winter Olympic and World Cup Soccer events concerned international assignments and were considered along with issue (5), the claim that complainant was denied international assignments. Moreover, the Newark Airport Drill and the Cyprus details occurred outside the timeframe of the instant complaint and will not be considered in this decision.
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0120072672
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072672