Ronald L. Washington, Complainant,v.Thomas J. Ridge, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.

Equal Employment Opportunity CommissionNov 18, 2004
01a45443 (E.E.O.C. Nov. 18, 2004)

01a45443

11-18-2004

Ronald L. Washington, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.


Ronald L. Washington v. Department of Homeland Security

01A45443

November 18, 2004

.

Ronald L. Washington,

Complainant,

v.

Thomas J. Ridge,

Secretary,

Department of Homeland Security,

(Transportation Security Administration),

Agency.

Appeal No. 01A45443

Agency No. 7-03-6055

Hearing No. 340-2004-00252X

DECISION

Complainant timely initiated an appeal from a September 17, 2004 agency

final action concerning his equal employment opportunity (EEO) complaint

of unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

The record reveals that during the relevant time, complainant was a

Transportation Security Screener, subjected to a conditional appointment,

at McCarran International Airport in Las Vegas, Nevada. Complainant

filed a formal EEO complaint on March 3, 2003, alleging that the agency

discriminated against him on the bases of race (African-American), color

(black), and in reprisal for prior EEO activity (filing a complaint with

the Nevada Equal Rights Commission (NERC)) when:

on November 7, 2002, he was discharged from his position as a

Transportation Security Screener at McCarran International Airport in

Las, Vegas.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). On May 27, 2004, the AJ issued a Notice of Intent to Issue

a Decision Without a Hearing, allowing the parties to file a written

response to the Notice. The record reveals that both parties responded.

Thereafter, the AJ issued a decision without a hearing on June 25, 2004,

finding no discrimination.

In her decision, the AJ determined that complainant cannot raise an

inference of discrimination with regard to his race and color claims.

The AJ found that complainant did not demonstrate that similarly

situated employees, not in complainant's protected classes, were

treated differently under similar circumstances. The AJ noted that

in his affidavit, complainant's second level supervisor (Supervisor)

stated that all agency employees at McCarran International Airport

(McCarran) are required to be issued security badges. The Supervisor

further stated that the Clark County Department of Aviation (the County)

is the regulatory branch that oversees the badge-issuance process, and

"makes its own determination as to whether or not an individual can

be issued a badge to work at the airport." The Supervisor stated that

the agency has no control or authority to issue badges or to overrule

a County determination on this matter. The Supervisor stated that if

an agency employee cannot get a badge, then he cannot work at McCarran.

The Supervisor stated that he was informed that complainant "could not be

issued a badge to work at McCarran because he had prior problems when he

worked there."<1> The Supervisor stated that complainant was terminated

from agency employment because he failed to pass the background check.

Furthermore, the Supervisor stated that there were other employees who

were terminated as a result of not passing their background checks.

With respect to complainant's claim that he was subjected to an additional

background check while white screening supervisors were not, the AJ

determined that complainant failed to provide evidence to support his

contentions.

Regarding the reprisal claim, the AJ found that complainant failed to

establish an inference of discrimination because he failed to establish

a casual connection between his prior EEO activity (NERC complaint)

and the action at issue. The AJ also found that there is no evidence

that management was aware of complainant's prior protected activity.

The AJ noted in his affidavit, the Supervisor stated he "had no knowledge

of his prior protected activity."

On September 17, 2004, the agency implemented the AJ's finding of no

discrimination.

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, 322-323 (1986); Oliver v. Digital

Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is

�material� if it has the potential to affect the outcome of a case.

If a case can only be resolved by weighing conflicting evidence, summary

judgment is not appropriate. In the context of an administrative

proceeding, an AJ may properly consider summary judgment only upon a

determination that the record has been adequately developed for summary

disposition.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that any

of the agency's actions were motivated by discriminatory animus toward

complainant's protected classes. Accordingly, the agency's final order

implementing the AJ's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

November 18, 2004

__________________

Date

1Prior to his agency employment, complainant

was employed as an Airport Transportation Specialist with Clark County

Department of Aviation in Las Vegas, Nevada. The record further reveals

that in November 2001, complainant was terminated from his position for

"unsatisfactory performance." Furthermore, the record reveals that

complainant filed a complaint with NERC concerning his prior termination.