0120132022
03-26-2015
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. 0120132022
Hearing No. 410201200233X
Agency No. HSTSA001762011
DECISION
On April 21, 2013, Complainant filed an appeal from the Agency's April 19. 2013, 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, Complainant worked as a Transportation Security Officer Screener (TSO) at Hartsfield-Jackson Atlanta International Airport. On January 25, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when on October 8, 2010, he was terminated from his position.
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 Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's August 7, 2012, motion for a decision without a hearing and issued a decision without a hearing on March 19, 2013.
In the AJ's decision, the AJ addressed Complainant's statement in regards to discovery. Complainant alleged that he was confused about the discovery deadlines. However, the AJ found that the acknowledgment order containing the deadlines was clear and that Complainant failed to initiate discovery within the time limits set forth in the acknowledgment order. The AJ declined to reopen the discovery because of the Complainant's failure to abide by those deadlines.
The AJ found the following facts: As a TSO, Complainant was in direct contact with the public. The employee's conduct and appearance has a significant impact on the public's attitudes towards the Federal Government and TSA. Part of the TSA's management directive MD 110.73-5, titled "Employee Responsibilities and Conduct," states that, "While on or off duty, employees are expected to conduct themselves in a manner that does not adversely reflect on TSA or negatively impact its ability to discharge its mission, cause embarrassment to the Agency, or cause the public and/or TSA to question the employee's reliability, judgment or trustworthiness." Additionally, it states, "Employees will not associate with individuals or groups who are believed or known to be connected with criminal activities." Based on TSA policies, all employees are to give complete and truthful information and responses to requests from law enforcement information or assistance.
In or around February 2009, Complainant had an apartment that he leased at the Harbor Point Apartments in Sandy Springs, Georgia. Thereafter, an individual (C1) began to reside in that apartment. Sometime in May or June of 2009, Complainant googled C1's name and discovered that he was wanted as a member of a drug cartel.
Between the time period of June 2009, when the Complainant became aware that C1 was residing in his apartment, and July 16, 2009, Complainant did not report to any law enforcement official that C1 was residing in his apartment. Thereafter, on July 16, 2009, investigators from the U.S. Marshals Southeast Regional Fugitive Task Force arrested C1 at the apartment that was leased by Complainant.
Inside the apartment at the time of C1's arrest, narcotics and drug paraphernalia were observed. C1 told authorities that he had been living in the apartment for approximately three months. According to the record, C1 was an alleged member of an organized drug trafficking organization with a history of violent crime. C1 had been indicted in July of 2007 for possession with the intent to distribute cocaine and had been a fugitive since the indictment.
Following that, on September 11, 2009, Complainant was interviewed by the U.S. Marshals. After Complainant was brought in for questioning, a United States Federal Marshal reported to the local news that Complainant had been harboring C1. On September 20, 2009, a story was also published in the local newspaper under the title, "TSA Worker Arrested on Suspicion of Harboring a [the name of the criminal organization] Fugitive."
On September 21, 2009, Complainant was notified that he was being placed on an indefinite suspension based on his indictment; thereafter, on October 8, 2010, he was issued a notice of decision of proposed removal. Complainant's removal was effective on October 15, 2010.
The AJ found that Complainant failed to identify any similarly situated individuals who were treated more favorably than he was. Additionally, the comparators that Complainant did identify were not within the same job classification, because they were in management. The AJ also found that any black males who were also terminated were in the same protected classification as Complainant, and they would not be considered comparators in his case.
The AJ found that even assuming arguendo that Complainant established a prima facie case of discrimination; the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, the Agency cited to TSA Management Directive 110.73-5, which provides that while on or off duty, an employee is expected to carry themselves in a manner that does not adversely reflect on TSA or negatively impact its ability to discharge its mission, cause embarrassment to the Agency, or cause the public and/or TSA to question the employee's reliability, judgment or trustworthiness. In addition, the employee will not associate with individuals or groups who are believed or known to be connected with criminal activities. The Agency's position was that by allowing C1 to stay in Complainant's apartment and not reporting it to law enforcement, Complainant violated TSA Management Directive in regard to his employee responsibilities and conduct.
The AJ also found that Complainant had not put forth evidence to show that the Agency's reasons were not worthy of credence. The AJ noted that Complainant believed that he was terminated because, as a young black male, he was associated with being a drug dealer. The AJ noted that Complainant admitted that he knew that C1 resided there and that he made the decision not to report it to law enforcement. Instead, Complainant removed himself from the situation and did not associate with C1. Therefore, the AJ found that Complainant failed to show that the Agency's nondiscriminatory reasons for its actions were pretextual and that discrimination was the real motive. The AJ noted that Agencies have broad discretion to carry out personnel decisions.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed this appeal with the Commission. Complainant did not submit any comments on appeal. The Agency requests that the Commission affirm its final order.
ANALYSIS AND FINDINGS
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 here. We also find that the record has been adequately developed; Complainant was given notice of the Agency's motion to issue a decision without a hearing; he was given an opportunity to respond 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.
Like the AJ, we find that assuming, arguendo, Complainant established a prima facie case of race and sex discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. According to the Agency, Complainant, by allowing C1 to stay in his apartment and not reporting it to law enforcement, violated TSA Management Directives with regard to his employee responsibilities and conduct. We further find that Complainant failed to meet his burden to show that the Agency's proffered reasons were a pretext for discrimination. Complainant failed to offer any persuasive evidence that the Agency's proffered reasons were not worthy of credence or were motivated by discriminatory reasons based on his race and sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's decision 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
__3/26/15________________
Date
2
0120132022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132022