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.