0120112067
02-28-2013
Ruben Atadero, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Ruben Atadero,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120112067
Agency No. HS-09-TSA-033224
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 21, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
From 2002 to May 2008, Complainant worked as a Federal Air Marshal (FAM) at the Agency's Seattle Field Office in Washington. Complainant's Third Level Supervisor was the Special Agent in Charge of the Seattle Field Office (SAC-1). Beginning in May 2008, Complainant worked as a FAM Instructor at the Agency's Federal Law Enforcement Training Center in Artesia, New Mexico. Complainant's Third Level Supervisor was the Special Agent in Charge of the FAM Training Division (SAC-2).
Complainant's claims were initially part of a class complaint, Early v. Dep't of Homeland Sec., Agency No. HS-08-TSA-007839.1 The effective date of EEO Counselor contact for the class was July 27, 2008. In an "Order Dismissing Class Proceeding; Order that Case Proceed as Individual Complaint" dated November 18, 2008, the EEOC Administrative Judge (AJ) stated, in pertinent part, that "any other employees with notice of, or affected by, the class proceeding may proceed as individual complaints as if their complaints had been filed on September 9, 2008 ..."
On December 29, 2008, Complainant contacted an EEO Counselor in his individual complaint. On March 27, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Hispanic, Mexican, Filipino), and age (47) when:
1. As part of his 2007 J Band promotion score, SAC-1 gave him a SAC score of 96 out of 100; and
2. As part of his 2008 J Band promotion score, SAC-2 gave him a SAC score of 40 out of 50.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. In accordance with Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
Claim 1
In its final decision, the Agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that while Complainant's claims were initially part of the class complaint, the effective date of EEO Counselor contact for the class was July 27, 2008. In addition, the Agency found that Complainant was aware of his 2007 J Band Score more than a year before that, when he had conversations about it with SAC-1 in July 2007. Finally, the Agency found that Complainant adduced no evidence of any reason for his failure to contact an EEO Counselor sooner.
On appeal, Complainant contended that the Agency erred in dismissing claim 1 for two reasons. First, Complainant argued that, as required by the AJ's November 18, 2008 order, he contacted an EEO Counselor within 45 days of the dismissal of the class complaint. Second, Complainant argued that the Agency improperly fragmented his complaint to create a timeliness issue because both J Band promotion scores were part of the same pattern of ongoing discrimination.
Upon review, we find that the Agency properly dismissed claim 1. Specifically, the record reflects that Complainant was aware of his 2007 J Band promotion score in July 2007, but did not initiate contact with an EEO Counselor until July 27, 2008 (as part of the class complaint), which is beyond the 45-day limitation period. See 29 C.F.R. � 1614.105(a)(1). Moreover, Complainant has not shown that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter occurred, or that despite due diligence he was prevented by circumstances beyond his control from contacting an EEO Counselor within the time limits. See 29 C.F.R. � 1614.105(a)(2).
Regarding Complainant's first argument, we initially note that the AJ's order did not explicitly address the issue of EEO Counselor contact. Moreover, we emphasize that the relevant question is not whether Complainant contacted an EEO Counselor within 45 days of the dismissal of the class complaint, but whether Complainant contacted an EEO Counselor within 45 days of the matter alleged to be discriminatory - his 2007 J Band promotion score. There is no evidence in the record that Complainant did so here.
Regarding Complainant's second argument, the U.S. Supreme Court has held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire. Id. at 114. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. at 113. Here, we find that Complainant's 2007 J Band Promotion Score is a discrete act and, as explained above, Complainant did not timely contact an EEO Counselor regarding that act. Accordingly, we will consider claim 1 only as background evidence in support of claim 2.
Claim 2
In its final decision, the Agency found that management articulated legitimate, nondiscriminatory reasons for giving him an SAC score of 40 out of 50. Specifically, SAC-2 averred that, in determining what SAC score to assign Complainant, he sought input from SAC-1 because he had not been Complainant's SAC for 90 days at the time the rating was due. In addition, SAC-2 averred that he compared SAC-1's recommended score of 35 with the scores of other FAMs under his supervision and raised Complainant's score to 40 because he was unaware of any negative performance information concerning Complainant and he considered 35 to be a fairly low score. Finally, SAC-1 averred that, in his opinion, Complainant's leadership capabilities were less than those of other employees he supervised and Complainant, a "complainer" who constantly found fault with the Agency, was not supervisory material.
Moreover, the Agency found that Complainant failed to prove, beyond a preponderance of the evidence, that management's reasons were a pretext for race, national origin, or age discrimination. The Agency addressed several pretext arguments that Complainant had raised in his affidavit and rebuttal statement. Specifically, the Agency found that Complainant's disagreement with SAC-1's assessment of his leadership abilities was insufficient to show pretext. Moreover, noting that he focused primarily on SAC-1's recommended score of 35, the Agency found that Complainant adduced no evidence rebutting SAC-2's conclusion that a score of 40 was warranted.
Upon review, we find that Complainant has failed to establish discrimination on the bases of race, national origin, and age when he received a SAC score of 40 out of 50 as part of his 2008 J Band promotion score. Like the Agency, we find that Complainant has not shown pretext.2
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that race, national origin, or age discrimination occurred, and we find that claim 1 was properly dismissed.
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
_2/28/13_________________
Date
1 There is no evidence in the record that Complainant filed an individual EEO complaint regarding these claims prior to becoming part of the class complaint.
2 On appeal, Complainant did not make any arguments concerning pretext.
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0120112067
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112067