0120141722
10-27-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120141722
Hearing No. 440201300110X
Agency No. HSTSA228112012
DECISION
On April 11, 2014, Complainant filed an appeal from the Agency's March 25, 2014, final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that he was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, around October 1, 2010, Complainant was unemployed and applied for a position at the Transportation Security Agency (TSA). On October 12, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him as an applicant for employment, on the basis of race (African-American), when on June 25, 2012 his application for a Transportation Security Officer (TSO) vacancy was removed from the TSA Candidate Dashboard hiring process.
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 EEOC AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's November 4, 2013, motion for a decision without a hearing and issued a decision without a hearing on February 4, 2014.
The AJ found the following undisputed facts: On November 10, 2002, Complainant was hired as a TSO at O'Hare International Airport in Chicago, Illinois. On March 25, 2005, the Assistant Federal Security Director (AFSD) for screening sent Complainant a Proposed Removal letter for failing to meet the requirements for annual re-certification on two different occasions. The Aviation Transportation and Security Act (ATSA) requires the TSA to discontinue the employment of security screeners who do not pass annual re-certification. Consequently, despite responding to the letter, Complainant was removed from his position.
With regard to the case at issue, Complainant applied for the same position that he was previously terminated from at O'Hare International Airport. A TSA Human Resources (HR) Specialist contacted the current AFSD on February 3, 2012, regarding Complainant's application. The HR Specialist asked the new AFSD whether Complainant should remain in the applicant pool despite a previous termination for failing to maintain his certification. The AFSD stated that he did not want Complainant to be considered for the TSO position because he was currently terminating employees for failing to maintain certification and Complainant had previously been fired for the same reason. As a result, Complainant was removed from the applicant pool.
In early July 2012, Complainant noticed that his name was removed from the hiring pool and contacted TSA regarding the status of his application. He was told to contact the current AFSD. Complainant alleged that during the phone call the AFSD made racially insensitive comments. In his witness affidavit, the AFSD acknowledged speaking with Complainant. The AFSD stated that Complainant thought that he, the AFSD, spoke to him disrespectfully but the AFSD assured him that he did not intend to show disrespect to him.
The AJ found that the Agency articulated a legitimate, non-discriminatory reason for removing Complainant from the TSA Candidate Dashboard. The Agency's AFSD chose to remove Complainant from the TSA Candidate Dashboard because he did not want to hire someone who had previously failed re-certification; especially, at a time when he was removing current employees for failing re-certification. The AJ noted that Complainant inferred discriminatory animus from the AFSD's statements because the majority of TSOs were African-American and he assumed the AFSD meant that TSOs who failed to recertify did so because they were African-American. Complainant did not offer evidence to support this belief and the AFSD did not admit to having such a belief. In his affidavit, the AFSD stated that he was not aware of Complainant's race until an EEO meditation that occurred at a later date. Thus, the AJ found that Complainant did not prove that the Agency's stated reason for the adverse employment action was a pretext.
The AJ found that Complainant failed to identify similarly situated individuals that were treated differently than him. The AJ noted that the applicant, whom Complainant referenced as being terminated and rehired, after failing to pass a certification exam, was actually reinstated after filing a grievance claim and successfully appealing her termination.
Finally the AJ found that the Agency was within its right to consider Complainant's previous termination while assessing his candidacy for employment. Although Complainant believed that his 2005 termination was wrongful, the AJ noted that Complainant also had the opportunity to appeal his termination and to file a grievance claim, and that whether or not Complainant deserved to be fired in 2005 was not a factor in the present case.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination. Complainant appealed the Agency's decision to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant primarily argues that the AFSD ignored rules that allow an applicant to be reconsidered for employment after only one year. Complainant alleges that he experienced ongoing retaliation from his termination in 2005 when the Agency refused to hire him. Complainant also alleges that he was not given an opportunity to have a fair and equal consideration for employment when the Agency removed him from its candidate pool in 2012.
The Agency made no comments on appeal.
ANALYSIS AND FINDINGS
Preliminarily, we note that in Complainant's appeal letter, he alleged for the first time that the Agency is retaliating against him, by using information from his 2005 termination to block his current hiring. The AJ did not address a retaliation claim in his Decision of Summary Judgment and we decline to address such a claim herein. We note that this claim was not raised before an EEO Counselor or Investigator in this complaint.
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that no genuine issue of material fact exists. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he responded to the motion, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. Therefore, we find the AJ's issuance of a decision without a hearing was appropriate.
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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
We find that assuming arguendo, Complainant had established a prima facie case of race, the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, the AFSD testified, in his affidavit that,
An HR representative may contact a local airport official to notify them when a previously removed candidate applies for a new position. . . . I received an email from . . . [a] HR Specialist, stating that the Complainant was applying for a TSO position and that he had been removed previously for failure to maintain certification. Each year I terminate approximately 10 employees for failure to recertify. Since . . . the Complainant failed certification previously, I told her via email to remove the Complainant from the hiring pool.
Complainant did not provide sufficient evidence to show that the Agency's explanation was pretext. Further there is nothing in the record to support Complainant's assertions that the Agency was motivated by discriminatory animus. Nothing in the record shows that the AFSD was aware of Complainant's race when the HR Specialist notified the AFSD of Complainant's candidacy or when Complainant called to inquire as to his removal from the candidate pool. Furthermore, the AFSD testified in his witness affidavit that he did not find out about Complainant's race until they met for EEO mediation on September 7, 2012. Prior to that, he stated that he was not aware of Complainant's race. Consequently, we find that Complainant failed to show that he was discriminated on the basis of race, as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision without a hearing finding no discrimination.
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
__10/27/14________________
Date
2
0120141722
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141722