0120103166
03-29-2013
Ruby D. Gatling, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Ruby D. Gatling,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120103166
Hearing No. 430-2008-00219X
Agency No. HS-08-TSA-000808
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 1, 2010, final order concerning her 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. For the following reasons, the Commission AFFIRMS the Agency's finding of no discrimination or harassment in this case.
ISSUE PRESENTED
The issue presented in this case is whether the EEOC Administrative Judge (AJ) correctly issued a decision without a hearing finding that Complainant failed to show that she was subjected to discrimination or harassment when she was terminated from her position of Transportation Security Officer during her probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency's Newport News/Williamsburg International Airport facility in Newport News, Virginia. Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and age (53) and subjected her to harassment when on October 14, 2006, she was terminated from her position during her probationary period.
Following an investigation, Complainant requested a hearing before an AJ. The Agency submitted a motion for summary judgment which argued that there were no material facts at issue and that it had stated a legitimate, nondiscriminatory reason for its action. The AJ granted the Agency's motion. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its action, namely, that Complainant was terminated during her probationary period because she could not pass the required standard initial certification training and, after receiving remedial training, she still could not pass the certification. Specifically, Complainant had been reprimanded for allowing an employee to walk down an exit aisle which was considered a sterile area; and verbally admonished for falling asleep on the job and bringing food into a sterile area. Moreover, Complainant violated the Passenger Screening Standard Operating Procedure by repeatedly touching a passenger in a "sensitive area" which was prohibited by the TSA. There was also testimony that Complainant had difficulty remembering proper procedures from one week to the next. Further, it was noted that Complainant became annoyed when trainers corrected/commented on her hand wandings or body pat downs.
Complainant argued that her witnesses, whom she had listed only by first name, were not interviewed and that an email was sent to her that supported her claim. The AJ found however, that when Complainant was asked during her deposition to specifically identify her witnesses she did not; and she also did not provide the email that she claimed supported her case. Moreover, the AJ found that Complainant did not deny that the incidents cited by the Agency occurred. The AJ found that Complainant failed to show that the Agency's articulated reasons were pretext for discrimination and that Complainant failed to demonstrate that she was subjected to harassment because she did not provide any supportive evidence other than her own statements that she felt mistreated by coworkers and management and that she was given misinformation and unnecessary criticism. The AJ also found that there was no evidence to support a harassment claim. The AJ thereby found that Complainant had failed to demonstrate that she was subjected to discrimination or a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the investigator could have gotten the last names of her witnesses. She also maintains that she has not seen video evidence that she requested, or her classroom instruction papers, or an x-ray exam that she took prior to her dismissal. Complainant argues that this information was either not submitted or was viewed as insignificant. Complainant maintains that this information is very significant to her case.
ANALYSIS AND FINDINGS
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. We find the AJ's issuance of a decision without a hearing was appropriate as there are no material facts at issue in this case. Further, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was discussed above, and Complainant failed to show that those reasons were pretext for discrimination. Regarding Complainant's allegation of harassment, we find that the incidents complained of by Complainant were not severe or pervasive enough to establish that a hostile work environment existed. We also find no evidence that Complainant's race, sex, color or age played a role in these matters. Finally, with regard to Complainant's contentions on appeal, Complainant is apparently questioning the adequacy of the discovery process in her case. However, other than her assertion that certain evidence was not provided to her or was deemed "insignificant," she does not indicate why this evidence would have established the existence of genuine issue of material fact or established that discrimination or harassment took place here.1
Accordingly, we find that 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
____3/29/13______________
Date
1 Complainant also did not indicate whether she sought the AJ's assistance in obtaining the evidence that she maintains was not provided to her.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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