0120070931
01-22-2010
Jose R. Rivera-Garcia, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Jose R. Rivera-Garcia,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120070931
Hearing No. 150-2006-00052X
Agency No. TSAF040948
DECISION
On December 4, 2006, complainant filed an appeal from the agency's
final action 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. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
ISSUES PRESENTED
(1) Whether the EEOC Administrative Judge's (AJ) issuance of a decision
without a hearing was appropriate; and (2) whether the AJ properly found
that complainant was not subjected to discrimination based on a perceived
disability and in reprisal for his prior protected activity.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Lead Transportation Security Screener at the agency's Luis
Munoz Marin International Airport in San Juan, Puerto Rico.
In June 2003, the agency issued Vacancy Announcement No. TSA-03-569
for the position of Supervisory Transportation Security Screener,
SV-1900-00/00. Complainant applied for the position. The Human
Resources Office reviewed the applications, and nine candidates,
including complainant, were referred for consideration. A four member
panel consisting of the Assistant Federal Security Director (AFSD),
the Acting Deputy Assistant Federal Security Director (ADAFSD), a
Training Coordinator (TC1), and a second Training Coordinator (TC2)
interviewed each candidate in November 2003. The final average rating
of the candidates interviewed ranged between 2.11% and 4.87% out of
a possible 5.00% average. The panel recommended that all candidates
that had a final rating of above average (3.50%) should be considered
for selection. Six candidates were referred to the Federal Security
Director (FSD), the selecting official, and all six candidates were
awarded a position. Complainant received a final rating of 3.01%,
and he was not recommended by the panel for further consideration.
Complainant was notified of his non-selection in January 2004.
In early July 2004, complainant learned from a co-worker who was on a
detail assignment to the Human Resources Office that the co-worker had
seen a form listing the names of the candidates referred for the position.
The co-worker stated that the form included a notation stating that
complainant was "overweight" and had a "mobility problem." On or around
July 26, 2004, complainant initiated EEO Counselor contact. During EEO
counseling, complainant learned that a document in the agency's possession
referencing his weight existed, and, on July 26, 2004, he filed a request
to obtain a copy of the document under the Freedom of Information Act
(FOIA).
On July 30, 2004, complainant was informed by his supervisor, the
Supervisory Transportation Security Screener (STSS1), that he was not
granted a cash award. He subsequently forwarded a memorandum to FSD to
request an official reason why he was not granted a cash award. In August
2004, FSD and an Administrative Officer (AO) met with complainant, and
FSD informed him that he was not granted the award because a Screening
Manager (SM1) had issued him a Record of Conversation (ROC) in April 2004.
FSD determined that complainant was wrongfully denied a cash award.
FSD awarded complainant a $400.00 cash award, but he was not issued a
Standard Form 50 (SF-50) reflecting that he received the award.
On August 6, 2004, AFSD and ADAFSD met with complainant to inquire
as to how complainant learned of the document referencing his weight.
Complainant informed the AFSD that he had initiated EEO contact, and,
as a result, he refused to discuss the matter. AFSD informed him
that the agency would decide whether or not to grant his FOIA request.
The agency ultimately denied complainant's FOIA request.
In October 2004, the agency issued Vacancy Announcement No. TSA-05-0102
for the Supervisory Transportation Security Screener, SV-0019-G,
position. Complainant applied for the position. The agency reviewed
the applications submitted, and 85 candidates were found eligible
for consideration. A six member panel was convened consisting
of the Assistant Federal Security Director - Screening (deceased),
the Scheduling Operations Manager (SOM), STSS1, two other Supervisory
Transportation Security Screeners (STSS2 and STSS3), and TC2. The panel
reviewed each candidate's application package, examining each candidate's
attendance, conduct, test scores, and KSA's evaluation. The panel granted
thirty-three candidates, including complainant, interviews and asked each
candidate five questions during the interviews. The candidates with the
highest interview scores were selected for thirteen vacant positions.
Complainant was ranked seventeenth overall based on his score. On March
29, 2005, complainant was informed of his non-selection.
On October 24, 2004, a Supervisory Transportation Security Screener
(STSS4) met with complainant to provide him with a copy of a Letter of
Counseling (LOC). She indicated that he was issued the LOC because he
had exhibited a pattern of being absent from work on three consecutive
Sundays when he was scheduled to be off work Monday through Wednesday.
Complainant refused to sign or accept the LOC.
Complainant filed an EEO complaint dated November 10, 2004, alleging
that:
(1) He was discriminated against on the bases of perceived disability
(overweight/mobility impaired) when he was denied a promotion to the
position of Supervisory Transportation Security Screener in June 2003;
(2) He was discriminated against in reprisal for prior protected EEO
activity arising under the Rehabilitation Act when he was harassed by
management officials from July 31, 2004 and continuing through October 28,
2004. Some examples provided in support of the harassment claim include:
a. On August 6, 2004, he was summoned to a meeting and asked how he
"found out" about the "document in question" included in the promotion
package for the position denied in June of 2003;
b. The complainant's award was handled inappropriately in that it was
denied, delayed, and processed without issuance of an SF-50; and
c. On October 24, 2004 and October 28, 2004, the complainant was told
that he would receive a letter of counseling.
(3) He was discriminated against and the basis of disability
and in reprisal for prior protected EEO activity arising under the
Rehabilitation Act when he was denied a promotion to the position of
Supervisory Transportation Security Screener on or about April 3, 2005,
under vacancy announcement TSA-05-0102.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and a notice of his right to
request a hearing before an AJ. Complainant timely requested a hearing.
Over the complainant's objections, the AJ assigned to the case granted
the agency's June 13, 2006 motion for a decision without a hearing and
issued a decision without a hearing on September 26, 2006, finding no
discrimination. When the agency failed to issue a final order within
forty days of receipt of the AJ's decision, the AJ's decision finding
that complainant failed to prove that he was subjected to discrimination
as alleged became the agency's final action pursuant to 29 C.F.R. �
1614.109(i).
CONTENTIONS ON APPEAL
On appeal, complainant, through his representative, argues that the AJ's
issuance of a decision without a hearing was "erroneous based on the
pleadings, incontrovertible documentary evidence and affidavits before the
[AJ] at the time of the decision and applicable law." He argues that the
agency failed to provide copies of two documents that could establish that
his perceived disability was a factor in his non-selections, and, even if
the two documents do not exist, "the [email] by itself provides sufficient
grounds for a finding that [complainant's] perceived overweight problem
was an important, if not the principal factor, in his non-selection for
promotion." He further argues that statements made by officials in the
record "raise serious questions" as to whether his perceived disability
influenced the interview panels involved in the selections.
Complainant argues that the evidence establishes that he was subjected to
discriminatory harassment when he was called into a meeting with AFSD on
August 6, 2004, he was issued a LOC by STSS4 in front of his co-workers,
the agency mishandled his cash award, and he was not selected for the
second promotion. Complainant also argues that the case presents a
number of credibility issues that must be resolved "in a full evidentiary
hearing." Finally, complainant argues that the AJ improperly issued a
decision without a hearing before allowing the parties sufficient time
to present arguments in favor of their respective positions.
In response, the agency urges the Commission to affirm its final order
because the AJ properly found no discrimination. The agency argues that
complainant failed to meet any of the elements necessary to establish
a prima facie case of discrimination. Additionally, the agency argues
that complainant "failed to make a showing that the Agency's stated
reasons for the decision not to promote him were a mere pretext."
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
`
We must first 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. 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).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists or that there are credibility issues such that
a hearing on the merits is warranted.
Complainant argues on appeal that the AJ failed to provide him with
sufficient time to respond to the agency's motion for a decision without
a hearing in accordance with 29 C.F.R. � 1614.109(g). However, we find
that complainant was given sufficient time to respond to the agency's
June 13, 2006, motion for summary judgment. We note that the record
reflects that complainant filed responses to the agency's motion and
his own Motion for Partial Summary Judgment in July 2006.
Disparate Treatment - Claims (1) and (3)
To prevail in a disparate treatment claim, 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 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).
Assuming arguendo that complainant established a prima facie case
of discrimination,1 we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim (1),
agency officials indicated that complainant was not referred to FSD
for selection because his final average rating was not above 3.50%.
AFSD submitted an affidavit into the record indicating that the panel
interviewed each of the nine candidates and referred six candidates
that achieved an "above average" final rating for the vacancies being
filled. AFSD further indicated that he informed complainant and the
other candidates who were not selected that they needed to improve
their presentation skills and preparedness for the interview process
in the future. FSD submitted an affidavit indicating that she was not
involved in the review and screening process, and the panel did not refer
complainant to her for selection. FSD concurred with the recommendations
made by the panel.
Regarding claim (3), agency officials indicated that complainant was not
selected for the promotion because only the candidates with the highest
scores were selected for the positions. Several members of the interview
panel, including TC2, SOM, STSS1, and STSS2, indicated that complainant
interviewed well. However, STSS1 indicated that only thirteen people
were selected, and there were at least thirteen candidates that received
higher scores than complainant.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we concur with the AJ's determination that
complainant failed to provide any evidence of pretext. We also find
that the record is devoid of any evidence that the agency's actions were
motivated by discriminatory animus.
On appeal, complainant argues that discriminatory animus may be inferred
because the record contains an email demonstrating that his "perceived
overweight problem was an important, if not the principal factor, in his
non-selection for promotion." We disagree. The Administrative Officer
(AO) submitted an affidavit into the record indicating that FSD asked
her for feedback regarding the individuals placed on the certificate
of candidates for the position at issue in claim (1). AO indicated
that she asked two Screening Managers for comments, and, on October 25,
2003, she authored and sent an email with a summary of what she learned
to FSD and the Deputy Federal Security Director. The email stated,
in pertinent part, that complainant had "been out sick for various
reasons but seems to have knee problems, possibly due to his weight.
[Two Screening Managers] advised this employee is lazy." Although the
email does reference complainant's weight, there is no evidence in the
record that the interview panel members were aware of its existence,
received a copy of the email, or were influenced by the contents of the
email when rating each of the candidates. FSD received a copy of the
email, but she did not consider complainant for the position because
his name was not forwarded to her for referral. Similarly, we find no
evidence in the record that the selection panel involved in claim (2)
received a copy of, or were influenced by, the email when scoring the
candidates for the second position.
Complainant argues that there are two documents that the agency failed to
provide during the investigation that create a genuine issue of material
fact as to whether his weight or "mobility problem" were considered
by the selection panels. However, we find insufficient evidence in the
record to establish the existence of these documents or that the documents
could have somehow influenced the selection panels. With respect to the
first document, complainant argues that a co-worker on detail to the
Human Resources Office viewed a document in the promotion package for
the position at issue in claim (1) that specifically noted that he was
"overweight" and had a "mobility problem." However, he failed to provide
any affidavits or other documentary evidence establishing the existence
of the document beyond his own mere speculation. Regarding the second
document, complainant alleges that SM1's statements in her affidavit
suggest that she was shown a document by AO, authored by an Aviation
Security Inspector (ASI), suggesting that complainant may have been
"tired all of the time" due to his "excessive weight." However, even
if the second document existed, neither SM1 nor ASI were members of the
selection panels, and there is no evidence the panel members were aware
of its existence or influenced by its contents.
Complainant also argues on appeal that discriminatory animus may be
attributed to AFSD because he investigated an anonymous note submitted
in Fall 2003 alleging that complainant was not completing all of his
work duties because he was "over weight." However, the record reflects
that the investigation, conducted by another employee at AFSD's request,
did not find that complainant was physically unable to perform all the
duties of his work due to his weight. Moreover, AFSD did not counsel
complainant after receiving the results of the investigation. We find
that AFSD's involvement in the investigation does not create a genuine
issue of material fact as to whether complainant was discriminated
against when he was not selected for the Supervisory Transportation
Security Screener position.
Hostile Work Environment - Claim (2)
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter
the conditions of [complainant's] employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75
(1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). To establish a claim of harassment, complainant must
show that: (1) he is a member of a statutorily protected class and/or
was engaged in prior EEO activity; (2) he was subjected to unwelcome
verbal or physical conduct related to his membership in that class
and/or his prior EEO activity; (3) the harassment complained of was
based on his membership in that class and/or his prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review, the Commission concurs with the agency's determination that
complainant failed to establish that he was subjected to discriminatory
harassment. AFSD indicated in his affidavit that he met with complainant
in August 2004 after he was told that complainant had seen a document
referencing his weight because he was the chairperson for the interview
panel and wanted to determine whether the document existed. AFSD further
indicated that he never saw the document, and no such document was
considered by the panel during the review process.
SM1 indicated that complainant was not given a cash award because of the
April 4, 2004, ROC in his file and because of his excessive absences
during the evaluation period. She indicated that complainant was
issued the ROC due to an incident in late March 2004 where he allegedly
left work early without proper approval. FSD indicated that she later
determined that complainant should not have been denied a cash award, and
she therefore reversed the decision and awarded him a $400 cash award.
AO stated that all of the allocated funds for the cash award program
had been depleted when FSD reversed the error regarding complainant.
FSD then decided to award complainant out of her own funds, and, as a
result, he did not receive an SF-50.
STSS4 indicated that she issued complainant an LOC in September 2004
because he had been absent on three consecutive Sundays, "which were
in conjunction with his scheduled days off, Mondays, Tuesdays, and
Wednesdays." She indicated that she attempted to give complainant a
copy of the LOC on October 24, 2004, but he would not accept a copy.
Based on our review of the record, we find that complainant has not shown
that the alleged harassment was based on a perceived disability or in
reprisal for his prior protected activity. Furthermore, in viewing the
events as a whole, complainant has not established that the incidents
in question had the purpose or effect of unreasonably interfering with
his work performance and/or creating a hostile work environment.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant also failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus towards him. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the agency's final
order is AFFIRMED.
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
___1/22/10_______________
Date
1 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0120070931
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070931