0120131328
07-09-2015
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. 0120131328
Hearing No. 510-2011-00483X
Agency No. HS-TSA-18171-2010
DECISION
On February 28, 2013, Complainant filed an appeal from the Agency's January 28, 2013 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal 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 Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency subjected him to hostile work environment harassment on the bases of disability and reprisal for prior protected EEO activity in connection with the April 2009 to June 2010 events surrounding his return to duty.
BACKGROUND1
At the time of events giving rise to this complaint, Complainant was a Lead Transportation Security Officer (LTSO) at the Agency's Orlando International Airport in Florida. From May 2006 to May 2009, Complainant was on active duty with the military and was absent from work. While on active duty, Complainant injured his back.
Upon his return from active duty, Complainant received a February 5, 2009 letter from the Administrative Officer (AO) regarding his absence from work. Specifically, AO stated the following:
Our records indicate that you have not reported to work for an extended period of time and it appears that you have abandoned your position ... By this letter, we are verifying your intentions. If you wish to terminate your employment with TSA, you must ... return all TSA-issued U.S. government property ... Failure to return your TSA-issued U.S. government property ... may result in civil and/or criminal enforcement actions against you ... You have not contacted anyone in your chain of command or in management with regard to your absences. You are directed to contact [Human Resources] ... so that we may promptly resolve this issue.
After receiving AO's letter, Complainant provided the Agency with a copy of his military orders for May 2006 to May 2009.
On January 5, 2010, Complainant received a phone call from a Human Resources Program Assistant (HR1). During the phone conversation, HR1 told Complainant that he could be subject to civil and criminal penalties if he did not return his Greater Orlando Aviation Authority identification badge. In response, Complainant told HR1 that Human Resources told him in 2006 to keep his badge.
On January 6, 2010, Complainant emailed HR1 about his status. Specifically, Complainant stated that he intended to return to his position, that he was undergoing medical treatment for a service-connected injury, and that he would advise the Agency when his physician released him to return to duty. In addition, Complainant requested a mailing address so he could return his badge. Moreover, Complainant stated that he was interested in transferring to Sanford Airport and noted that he had requested such a transfer prior to leaving for active duty.
On January 7, 2010, HR1 responded to Complainant's email. Specifically, HR1 acknowledged Complainant's intent to return to his position, requested documentation showing that he had been unable to return to his position within 90 days of his May 2009 release from active duty because of his service-connected injury, and provided a mailing address for the return of his badge.
On January 14, 2010, Complainant emailed HR1 documentation regarding his medical treatment and stated that he was still waiting on documentation regarding his functioning limitations. On March 22, 2010, Complainant emailed HR1 documentation regarding his functional limitations. In addition, Complainant asked HR1 what steps he needed to take to return to duty and what accommodations would be made. Further, Complainant reiterated his interested in transferring to Sanford Airport.
On April 5, 2010, Complainant emailed HR1 to follow-up on his request to return to duty. Specifically, Complainant stated that he had not yet received a reply to his request. On April 6, 2010, HR1 forwarded Complainant's March 22 and April 5 emails to a Human Resources Specialist (HR2) and copied Complainant on the email.
On April 19, May 3, and June 8, 2010, Complainant emailed HR1 and HR2 to follow-up on his request to return to duty. In the June 8, 2010 email, Complainant stated that he had provided the Agency with all the requested documentation related to his return to duty, such as his military orders, information about his medical treatment, and information about his functional limitations. In addition, Complainant stated that he was seeking legal assistance as the Agency had intentionally refused to communicate with him and had delayed completing his return to duty as requested.
On June 8, 2010, after receiving Complainant's latest email, HR2 left a voicemail for Complainant and requested that he call her about the information he provided.
On June 9, 2010, Complainant emailed HR2 and requested that she email or send him a letter about any questions or information she had, in the interest of maintaining a complete and accurate understanding of any discussion. In addition, Complainant stated that he would respond as soon as possible with any requested information.
On October 16, 2010, Complainant filed an EEO complaint alleging that the Agency subjected him to hostile work environment harassment from April 2009 to June 2010 on the bases of disability (back injury) and reprisal for prior protected EEO activity (2004 EEO complaint) when:
1. It did not respond to his multiple attempts to return to duty after his military service and ceased communication with him after June 8, 2010;2
2. It threatened him with civil and criminal penalties if he did not return Agency property; and
3. It did not respond to his March 22, 2010 request to transfer to Sanford Airport.
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. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 5, 2012 motion for a decision without a hearing and issued a decision without a hearing on December 20, 2012. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected him to discrimination as alleged. Complainant then filed the instant appeal. We will address Complainant's contentions on appeal below.
ANALYSIS AND FINDINGS
Standard of Review
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 (EEO MD-110), Ch. 9, � VI.B (Nov. 9, 1999) (providing that both the AJ'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 EEO MD-110, Ch. 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").
AJ's Issuance of a Decision Without a Hearing
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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Hostile Work Environment 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 (Mar. 8, 1994).
On appeal, Complainant contended that the Agency subjected him to hostile work environment harassment. Regarding the basis of disability, Complainant argued that the Agency was aware of his disability because he provided them with medical documentation. Regarding the basis of reprisal, Complainant argued that he filed an EEO complaint in 2004, that Human Resources knew about that complaint, and that the first contact he had with the Agency after filing that complaint was when he requested to return to work in 2009. Regarding incident 1, Complainant argued that the Agency disregarded his requests for assistance in returning to duty and did not provide a valid business reason for doing so. Regarding incident 2, Complainant argued that the Agency improperly accused him of not returning property because it told him to keep his badge when he left for active duty. Regarding incident 3, Complainant argued that the Agency never responded to his transfer request.
Upon review of the record, we find that Complainant did not establish a claim of harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the incidents complained of were based on his disability3 or prior protected EEO activity.
Regarding incident 1, AO averred that, due to an "oversight on our part," his staff "dropped the ball" in communicating with Complainant about the process and requirements for returning to duty. In addition, HR1 averred that he provided Complainant's medical documentation to HR2 and had no further involvement in Complainant's request to return to duty. Moreover, HR2 averred that she received Complainant's June 9, 2010 email, but forgot to send him a written communication with what was discussed on June 8, 2010 to further move the process along.
Regarding incident 2, AO averred that Complainant was issued a form letter which included standard language about being subject to penalties for failing to return Agency property. In addition, AO averred that his staff sends about 10 to 15 such letters to employees every year. Further, AO averred that Agency procedures changed during the time Complainant was on active duty; the previous procedure allowed an employee to keep his badge while on active duty, but the current procedure required the employee to return his badge to the Agency before leaving and the Agency would reissue the badge to the employee upon his return to duty. Moreover, HR1 averred that he did not recall discussing possible civil and criminal penalties with Complainant in connection with the badge, but that it was routine to inform an employee of the established liabilities associated with Agency property.
Regarding incident 3, HR1 and HR2 averred that they were not responsible for processing transfer requests. In addition, AO averred that employees are required to follow a formal process when requesting a transfer and that Complainant follow that process in 2010. Moreover, AO averred that he would expect his staff to have responded to Complainant's 2010 inquiry about the transfer, but that responding to Complainant's inquiry would be secondary to his return to duty.
The documentary evidence in the record reflects that, in 2009 and 2010, the Agency did not adequately communicate with Complainant about his return to duty after military service. In addition, the documentary evidence in the record reflects that the Agency told Complainant in 2009 and 2010 to return his badge, that he returned his badge, and that the Agency did not subject him to any civil or criminal penalties. Moreover, the documentary evidence in the record reflects that Agency policy required an employee to submit a transfer request to Human Resources at Orlando International Airport utilizing the Voluntary Transfer Request Form (TSA Form 1181B Supplemented) and that Complainant did not submit such a form in 2010. Other than Complainant's bare assertions, the record contains no evidence that the Agency's actions were motivated by his disability or prior protected EEO activity.
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.
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
_7/9/15_________________
Date
1 The background is based on Complainant's formal complaint, Complainant's affidavit testimony, and the documentary evidence in the record.
2 In August 2011, the Agency returned Complainant to work in a light duty position.
3 We assume, without so finding, that Complainant is an individual with a disability under the Rehabilitation Act.
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0120131328
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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