0120073258
06-04-2010
Clifford M. Hall, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Clifford M. Hall,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120073258
Agency No. HS04TSA000903
DECISION
On July 10, 2007, complainant filed an appeal from the agency's May 31,
2007 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. The appeal is deemed timely1 and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether complainant met his burden of establishing that the challenged
actions constitute unlawful discrimination or retaliation.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Transportation Security Screener (STSS) at Philadelphia
International Airport (PHL) in Pennsylvania. On May 17, 2004, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of race (Caucasian), age (47), and reprisal (for filing a
whistleblower complaint with the Office of Special Counsel about nepotism
and other unlawful hiring practices), when:
(1) during January 20032, he received letters of counseling;
(2) from August 21, 2003 until March 27, 2004, he was subjected to
hostile work environment harassment;
(3) on March 27, 2004, he was forced to resign (constructive discharge);
and
(4) during the informal processing of his allegations, the EEO Counselor
attempted to misrepresent facts in the Notice of Right to File a
Discrimination Complaint, and the agency failed to meet the deadline
for mediation of his discrimination dispute.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation (as well as a supplemental report
of investigation)3 and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). In accordance with complainant's request,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Final Agency Decision
The FAD initially noted that it had dismissed complainant's allegations
based on reprisal, for failure to state a claim, noting that his complaint
to the Office of Special Counsel about nepotism in hiring does not fall
within EEOC's purview.
The FAD also indicated that issue (1) was subject to dismissal under
29 C.F.R. � 1614.107(a)(2) for untimeliness, noting that complainant's
alleged receipt of letters of counseling in January 2003 occurred more
than 45 days before he contacted an EEO Counselor on January 30, 2004.
As to issue (4), the FAD found that the claim was subject to dismissal
under 29 C.F.R. � 1614.107(a)(8), because it alleges dissatisfaction
with the EEO counseling process, and therefore, fails to state a claim
within the purview of the EEOC regulations.
The FAD then addressed the remaining issues on their merits as follows:
complainant did not establish a prima facie case of hostile work
environment harassment. Complainant provided no particulars sufficient
to support a conclusion that unwelcome harassment occurred. When asked
to describe the conduct that allegedly constituted a hostile work
environment, complainant recounted his discovery on October 28, 2003,
that the Federal Security Director (FSD) at PHL was under investigation
for unlawful hiring practices. Complainant identified the FSD and
one of the Screening Managers (SM1) as the main harassers and declared
that specific details were located in the attachments to his affidavit.
The FAD noted that the affidavit and attachments, containing a lengthy
repetitive narrative, only provided the following date-specific examples
of actions that could be viewed as harassment:
(a) in 2002, complainant and others were allegedly subjected to
wage discrimination, which led to his filing a grievance in May 2002
(complainant did not identify the alleged discriminatory basis);
(b) from August 21 to 25, 2003, he was on travel in connection with his
transfer from SLC to PHL but was not paid for travel time;
(c) between August 25 and September 15, 2003, he was notified that he
would not receive a $5,000.00 relocation bonus; and
(d) in January 2004, SM1 allegedly "wrote him up" for allowing prohibited
items found in military passengers' luggage to pass through the checkpoint
after SM1 had instructed complainant to overlook such items due to the
fact that they were serving our country.4
The FAD found that complainant articulated no plausible grounds to
prove that the alleged hostile work environment was based on his race
and/or age. In contrast, complainant maintained that the hostile work
environment he encountered at PHL was directly related to his filing
of a grievance to complain about the FSD's nepotism in hiring. He also
cited SMl's statements of support for the FSD as manifestations of the
alleged hostile work environment. The FAD concluded that complainant's
claim of harassment must fail.
As to the constructive discharge, the FAD found as follows: the alleged
agency conduct could not be considered so intolerable that a reasonable
person in complainant's position would have felt compelled to resign.
Moreover, even if any of the circumstances could be considered
intolerable, complainant provided no evidence to prove that any of
management's actions were motivated by complainant's race or age.
Complainant's representations merely reflect his belief that he was the
victim of retaliation for raising issues that did not fall within the
purview of the statutory prohibitions against race and age discrimination.
The FAD concluded that complainant failed to prove that he was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant, among other things, asserts that he never received
notice that on July 22, 2004, the agency had dismissed some of his claims.
Next, he denies that he received a letter of counseling on January 30,
2003. He explains that he actually received the letter in January 2004,
and that therefore, issue (1) is not subject to dismissal for untimely
EEO counselor contact. Complainant also presents copies of a statement
of facts that he had previously filed, and a copy of a time line that he
previously filed. He also emphasizes that his right "to assert or to
report violations of workplace policies and procedures is established
in the Federal Whistleblower's Protection Act." The agency makes no
new arguments in reply.
ANALYSIS AND FINDINGS
At the outset, we note that assuming, as he alleges, that complainant
never received the agency's initial letter dismissing certain claims
raised in his formal complaint, this would constitute harmless error,
as complainant now has the opportunity to appeal the dismissals and has
done so.
Next, we address the agency's dismissal of issue (1). We find that
complainant did allege that the letter of counseling to which he objected
was issued in January 2004, not January 2003. The record contains a
"Memorandum of Counseling" dated January 2, 2004, in which complainant
is charged with "failure to follow chain of command with notification of
possible ammunition at checkpoint." Report of Investigation (ROI), Tab G3.
The agency ought to have addressed this claim within a disparate treatment
framework, and not only within a harassment framework. In this decision,
we will address the matter both as an incident of alleged harassment,
and as a separate claim of disparate treatment.
Next, we agree that issue (4) is subject to dismissal under 29 C.F.R. �
1614.107(a)(8), because it alleges dissatisfaction with the EEO counseling
process. Therefore, we affirm its dismissal.5
We now turn to addressing the merits of issues (1), (2) and (3).
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Disparate Treatment
Issue (1): January 2, 2004 Letter of Counseling
As previously noted, because this claim was timely brought to the
attention of an EEO Counselor, we find that we must address, within
a disparate treatment framework, the claim that in January 2004, SM1
allegedly issued a letter of counseling for allowing prohibited items
found in military passengers' luggage to pass through the checkpoint
after SM1 had previously instructed complainant to overlook such items.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming complainant could establish a prima facie case of
discrimination and retaliation, the agency has articulated a legitimate,
nondiscriminatory explanation for its actions. Specifically, SM1 states
that she never told complainant to overlook items that military personnel
were carrying or any other items. We find no persuasive evidence of
pretext or evidence suggesting that this disciplinary action was taken
because of management's discriminatory animus against complainant.
Issue (2): Harassment
To establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on
their statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). Further, the incidents must have been "sufficiently
severe or pervasive to alter the conditions of [complainant's] employment
and create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 at 6 (March 8, 1994).
Considering all incidents cited by complainant jointly, the evidence
in the record is insufficient to support a finding that management's
actions towards complainant were based on his race, age or prior protected
EEO activity. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6. In this record,
complainant discusses issues his whistle-blowing in great detail,
as well as his opinion that he has been subjected to retaliation for
opposing such activities. We note that while cronyism and nepotism
may seem unfair and reflect poor business judgment, such factors are
not unlawful pursuant to the federal anti-discrimination statutes. See
Perkins v. Dept. of the Treasury, EEOC Appeal No. 01A05020 (March 9, 2001)
(stating that cronyism is not in and of itself a violation of Title VII,
absent evidence of discrimination). By contending that factors such as
cronyism were at play in the instant case, complainant undermines his
contention that race, age or reprisal for prior protected EEO activity,
motivated management's conduct.
Issue (3): Constructive Discharge
A discriminatory constructive discharge occurs when the employer,
motivated by discriminatory animus, creates working conditions that are
so difficult, unpleasant, or intolerable that a reasonable person in
complainant's position would feel compelled to resign. Doe v. Social
Security Admin., EEOC Appeal No. 01A114791 (Feb. 21, 2003). In other
words, the employee is essentially forced to resign under circumstances
where the resignation is tantamount to the employer's termination or
discharge of the employee. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d
568, 574 (8th Cir. 1997). The Commission has adopted a three-pronged
test for establishing a constructive discharge. Complainant must show
that: (1) a reasonable person in her position would have found the
working conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Serv., EEOC Appeal
Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor v. Department of
Defense, EEOC Request No. 05900630 (July 20, 1990)).
Complainant stated that his reason for deciding to leave the agency was
because of a series of employment discrimination and illegal hiring
and promotion practice events spanning a two year period. However,
we find that there is no indication in the record that complainant
was subjected to intolerable working conditions which arose out of
conduct which constituted prohibited discrimination on the basis of
his membership in a protected group. We note that we do not have the
benefit of an AJ's findings after a hearing, as complainant chose a FAD
instead, and so, we can only evaluate the facts based on the weight of
the evidence presented.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
____6/4/10_______________
Date
1 Because the agency has not supplied a copy of a certified-mail
return-receipt or any other item capable of establishing the date of
complainant's receipt of its final decision, the Commission presumes
that the appeal was filed within thirty (30) calendar days of the date
of complainant's receipt of the final decision.
2 On appeal, complainant asserts that this date is an error. He states
the correct date is January 2004, and that he timely brought this matter
to the attention of an EEO Counselor.
3 On December 13, 2006, the agency determined that a supplemental
investigation was required concerning the constructive discharge issue.
4 This is the same letter of counseling that is cited in issue (1).
5 With respect to complainant's contention that the agency failed to
meet the deadline for mediation, we note that Commission policy states
that, "[n]othing said or done during attempts to resolve [a] complaint
through ADR can be made the subject of an EEO complaint." EEOC Management
Directive 110 for 29 C.F.R. Part 1614 (EEO-MD-110), 3-3 (November 9,
1999).
??
??
??
??
2
0120073258
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120073258