0120111261
06-21-2011
Joseph M. Rolinski, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Joseph M. Rolinski,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120111261
Agency No. HS09TSA007792
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 7, 2010 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. § 791et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Transportation Security Officer at the Agency’s Seattle-Tacoma
International Airport facility in Seattle, Washington. On October 30,
2009, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 791 et seq when: 1) In November 2008, he applied for leave
under the Family Medical Leave Act (FMLA), and TSA did not approve his
request until June 2009; and 2) On June 23, 2009, he learned that TSA did
not select him for a Supervisory Transportation Security Officer (STSO)
position, advertised under Vacancy Announcement Number SEA-F09-0002.
The record reflects that Complainant engaged in prior EEO activity
in September 2008. Complainant alleged that he requested FMLA in
November 2008, due to his wife's medical conditions. In November 2008,
Complainant alleged that he traveled to San Antonio, Texas to work on a
temporary duty assignment, and upon his return in May 2009, he learned
that his FMLA request had not yet been approved. In June 2009, TSA
finally approved Complainant's FMLA request. On February 20, 2009, TSA
posted Vacancy Announcement Number SEA-F09-0002 for the STSO position.
Complainant timely applied for this position, and his name appeared on
the Best Qualified List. A three-member interview panel and the Federal
Security Director served respectively as the Recommending Officials and
Selecting Official for this recruitment. On May 19, 2009, the interview
panel interviewed Complainant. Complainant's overall interview score did
not qualify him for selection consideration, and the Selecting Official
selected five other individuals (the Selectees).
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. Complainant requested
a final decision. The Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b).
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie
case, management had recited legitimate, nondiscriminatory reasons for
its actions. Specifically, concerning Complainant's FMLA request,
a Human Resources Specialist (HRS-l) stated that the Agency held up
Complainant's FMLA request because his previous request did not expire
until February 2009, and Complainant would need to submit the new request
"close to the renewal date." HRS-l explained that she could not accept
FMLA requests far in advance because the medical documentation supporting
the request would not be up-to-date. HRS-l noted that Complainant was
advised to resubmit his FMLA packet in February 2009. She stated that
Complainant's request was also delayed because the request did not go
through the chain of command, and "the managers in an employee's chain
of command need to know this information." Regarding Complainant's
non-selection, a second Human Resources Specialist (HRS-2) testified that
the Agency selected the Selectees because their overall interview scores
and supervisory evaluations were higher than those of Complainant. HRS-2
testified that Complainant received the lowest supervisory evaluation,
and that his interview score was "close to the bottom."
ANALYSIS AND FINDINGS
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, 120 S.Ct. 2097 (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).
On appeal, Complainant mainly challenges the credibility of Agency
witnesses and asserts that there was an inadequate investigation in
this matter. However, beyond his bare assertions, Complainant has not
produced evidence to show that the Agency’s explanations are a pretext
for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
June 21, 2011
__________________
Date
2
0120111261
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111261