0120112260
01-20-2012
Louis A. Abuso, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Louis A. Abuso,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120112260
Hearing No. 541-2010-00060X
Agency No. HS-09-TSA-005426
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s February 23, 2011 final order concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a probationary Transportation Security Manager/Bomb Appraisal Officer
at the Agency’s Denver International Airport in Denver, Colorado.
On July 7, 2009, Complainant filed a formal complaint alleging that
the Agency discriminated against him on the basis of age (54) when:
on March 30, 2009, during the trial period of his employment, he was
terminated for cause from his position as Transportation Security Manager.
The record reflects that Complainant was appointed to his position in
April of 2008 for a two year trial period, and was to provide technical
advice and assistance to the security staff with respect to, inter
alia, explosives and explosive devices, and chemical, biological,
radiological and related threats. His responsibilities included
interacting with the public engaged in air travel or who, otherwise,
visited airport facilities. Complainant's appointment was provisional,
conditioned on his ability to demonstrate his fitness and qualifications
for a permanent position. In turn, his appointment could be terminated
at any time during his trial period for professional shortcomings he
demonstrated in connection with his job performance, conduct, or behavior.
The record also reflects that within the first year of his appointment,
Complainant was involved in several documented incidents relating
to Complainant's professional misconduct. In November of 2008,
seven months after his appointment, he was counseled and issued an
official Letter of Guidance and Direction for "inappropriate" and
"unprofessional" conduct related to his open and public cursing and
making negative comments about Transportation Security Officers in
violation of Agency policy. Complainant was also found by management
to have violated Agency policy when he downplayed or trivialized an
Agency colleague's possession of banned weapons while this colleague was
engaged as a traveling passenger. Another incident involved airport
management staff and officials of Allegiant Airlines who had lodged
specific complaints about Complainant's exercise of poor judgment
and unprofessional behavior as a federal security officer. A final
incident of misconduct by Complainant occurred on March 23, 2008.
After an investigation, including the taking of statements of several
percipient witnesses, it was determined that Complainant had grossly
mishandled the security examination of a traveling member of the public.
Complainant had been asked to assist in the inspection of a passenger who
was transporting fireworks, which, as explosives or explosive devices,
were within Complainant's responsibilities as a Bomb Appraisal Officer.
However, Complainant suspected that this airplane passenger was using
or carrying illicit drugs. The investigation into the possession of
illegal drugs by traveling passengers was not within Complainant's area
of Bomb Appraisal responsibilities. Nonetheless, during an ensuing
search, Complainant ordered the passenger in question to face the wall
and place his hands on his head so that Complainant could pat him down.
This "pat-down" practice is not permitted to be undertaken by officers
of the Agency like Complainant, unless they have been trained and are
certified in the procedure. It was also determined that, during the
security check in issue, Complainant "placed the passenger in an arrest
position with his hands behind his neck and legs spread;" that he "held
the passenger's hands which were positioned on the passenger's neck;"
that he aggressively "grilled" the passenger about taking prescription
medications; and that he "opened each of the passenger's medication
bottles, looked inside and poured out the contents."
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 within the time frame provided in 29 C.F.R. § 1614.108(f).
On February 2, 2011, the AJ issued a summary decision finding no
discrimination. In reaching this decision, the AJ determined that even if
Complainant could establish a prima facie case, the Agency had articulated
legitimate, nondiscriminatory reasons for concluding that Complainant's
provisional employment was not successful and that Complainant was not
suited for this Manager/Bomb Appraisal Officer position. The evidence
demonstrates that management honestly and reasonably believed that,
because Complainant's provisional employment in the position was marked
with professional misconduct and shortcomings, he was demonstrably
unsuited for the position he was hired to fill. Moreover, in terminating
Complainant's provisional status, it is undisputed that, with respect
to the inappropriate passenger search incident involving Complainant,
which was one of several examples of Complainant's misconduct which led
to his removal, the Agency relied on the results of an Agency internal
investigation which concluded that Complainant's inappropriate passenger
search was unprofessional. The AJ found that there is no evidence that
the investigation was not thorough and reasonable, conducted in a neutral
and non-discriminatory manner, and initiated for good cause, or that it
did not provide sufficient grounds to reach a definitive conclusion with
respect to this particular incident.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the
instant complaint was suitable for summary judgment. The record is
adequately developed and there are no disputes of material fact.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(a), 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 repeats earlier arguments and asserts that the AJ
improperly issued a summary decision in this matter. However, Complainant
has not produced evidence to show that the Agency’s explanations are
a pretext for discrimination or identified material facts in dispute
which could alter the adjudication of his claims.
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 order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence 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
January 20, 2012
__________________
Date
2
0120112260
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112260