0120071655
05-28-2009
Philip W. Bell, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Philip W. Bell,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071655
Hearing No. 410-2006-00155X-RPD
Agency No. HS 05-ICE-000559
DECISION
Complainant filed an appeal from the agency's final action dated January
10, 2007, finding no discrimination with regard to his complaint.
In his complaint, complainant alleged discrimination based on age (over
40), disability (knee injury), and in reprisal for prior EEO activity
when: (1) on October 5, 2004, he was terminated from his probationary
employment; and (2) in October and December 2004, he was not approved
to be a Contract Manager for a federal contractor.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On December
6, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. 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 actions. With regard to claim
(1), the AJ stated that the agency initially hired complainant as a
Physical Security Specialist (Law Enforcement and Security Officer),
GS-09, effective October 6, 2003. When hired, complainant was informed
that as a condition of his continued, non-probationary employment,
he had to attend and complete Law Enforcement training at the Federal
Law Enforcement Training Center (FLETC). Complainant failed to do so.
Complainant acknowledged that he could not pass the physical requirements
needed to complete the FLETC program due to his physical limitations from
both his knees which were not fully disclosed to the agency when hired.
The AJ noted that complainant had torn meniscus in each knee, a torn
ACL in his right knee, and a dime-size hole in one keep cap, as well as
degenerative disease in both knees. In July 2004, he underwent surgery
to repair the torn meniscus in his right knee.
With regard to claim (2), the AJ noted that in October 2004, a federal
contractor, Paragon Security Systems, conditionally hired complainant as
a statewide (Alabama) contract administrator under a contract with the
agency. As a condition precedent to hiring anyone into this position,
Paragon had to get approval from the agency. On October 13, 2004, an
agency Supervisory Contract Specialist notified Paragon that complainant
was an unacceptable candidate for the position at issue because he did not
meet the stated experience or educational qualifications for the position.
Specifically, the Specialist stated that complainant did not possess
either four years of study or substantial and credible law enforcement or
military experience that demonstrated the capacity to manage a security
guard contract of the size and scope of the contract. She also indicated
that complainant did not possess five years of specialized experience.
After a review of the evidence in the record, the AJ determined, and
we agree, that complainant failed to rebut the agency's legitimate,
nondiscriminatory reasons for the alleged actions. Assuming (without
deciding) that complainant was an individual with a disability, we find
that complainant has not shown that any agency action was motivated by
discrimination. Furthermore, we find that complainant's request that
he be waived from the physical requirements of the FLETC program is
not a reasonable accommodation since those physical requirements were
essential functions of the position. Also, the record indicates that
complainant did not request an accommodation until after the issuance
of the notice of termination. Accordingly, the agency's final action
finding no discrimination 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
5/28/09
__________________
Date
2
0120071655
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013