0120093353
10-28-2009
Fran C. Aguilera, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Fran C. Aguilera,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120093353
Hearing No. 560-2008-00136X
Agency No. HS07TSA001281
DECISION
On July 29, 2009, complainant filed an appeal concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the agency's final action.
BACKGROUND
Complainant had been working since 2002 as a Transportation Security Officer at the agency's Tulsa International Airport in Oklahoma. Complainant suffered from a myriad of debilitating health conditions and seriously injured her ankle in a fall during 2006. In April 2007, complainant filed an EEO complaint. Therein, complainant claimed that she was discriminated against on the basis of sex, age, disability and reprisal when in January 2007, the agency proposed her removal.
On August 29, 2007, the agency issued a document identified as "Partial Acceptance for Investigation. Therein, the agency dismissed the sex, age and disability based claims. arguing that they failed to state a claim because the removal was only proposed.1 However, on May 17, 2007, a letter was signed by agency officials stating that the removal action was final and effective. It is unclear as to whether this letter was ever sent to complainant.
The agency accepted the retaliation based claim, acknowledging that the standard for stating a claim of retaliation is different in that the alleged activity must only be reasonably likely to deter complainant, or others, from engaging in the EEO process.
At the conclusion of the investigation on the retaliation-based claim, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Following its transfer from the Commissioner's St. Louis District Office to the Dallas District Office, the AJ assigned to the case, granted the agency's motion and issued a decision without a hearing on June 9, 2009, over complainant's objections. In her decision, the AJ appeared to rely on evidence that was at least ten months old at the time, suggesting that the removal had never truly become effective due to the pending resolution of complainant's workers' compensation claim.
The Commission notes that it is unable to discern from the present record whether the agency subsequently issued a final order. For purposes of this decision, we presume that the AJ's decision became the final agency action, which includes the procedural dismissal of the sex, age and disability based claim.
CONTENTIONS ON APPEAL
On appeal, complainant makes several points that support the agency's contentions regarding her leave usage and unscheduled absences. However, complainant also appears to suggest that the agency's leave usage policies, to the extent that management even fully understood them, were not always consistently communicated or applied. Complainant also provides examples of how she was treated much less favorably after she initiated a prior EEO complaint (Agency No. HS06TSA001954) including being removed as the Control Room Monitor, not being allowed to serve as a substitute lead and not being allowed to use walkie-talkies in the work area. Complainant also submits a copy of the August 29, 2007 dismissal letter to prove that the prior formal complaint contained other bases, including disability.
ANALYSIS AND FINDINGS
The Commission determines that the agency's handling of the instant formal is inconsistent with the guidance and directives supporting a federal employee's right to equal employment opportunity in the federal government.
First and most significantly, to the extent that the agency's intent to make the removal action final was stated in the May 17, 2007 letter, in the interests of judicial economy and fairness, the agency should have merged the proposed removal with the final removal for purposes of complaint processing. It should not have maintained three months later in August 2007 that the removal was proposed after it put its final determination on the removal into writing in May 2007.
Second, it was inappropriate for the agency to have attempted to dissuade complainant from exercising her right to file a complaint under the Rehabilitation Act.
Third, the agency's efforts to characterize complainant's prior EEO complaint (Agency No. HS06TSA001954) as alleging a violation of the Family Medical Leave Act (FMLA) were disingenuous in light of a July 14, 2006 letter to complainant from an agency EEO Counselor acknowledging that her request for counseling was for age and disability based violations.
Nevertheless, it remains unclear from the present record whether complainant's removal has yet to be or will ever be effected due to the potentially pending resolution of her workers' compensation claim. Moreover, based on the seriousness of complainant's medical conditions, it is unclear whether complainant is qualified to be a Transportation Security Officer. Other matters remain in question: whether complainant could perform the essential functions of her position with reasonable accommodation; whether other employees whose limitations were as extensive as complainant's limitations accorded more favorable treatment; and if her attendance record was as abysmal as the agency argues it was, why was she described as "role model for excellence" in the category of "dependability" in connection with a 2006 performance rating.
Based on the unresolved nature of the underlying employment action and the aforementioned legal questions and credibility issues, we are not persuaded that the issuance of a decision without a hearing, on whether the proposed removal was motivated by retaliatory animus, was appropriate. We note that the AJ did not seem concerned with the agency's refusal to produce a workplace profile of the Tulsa International Airport screeners, annotated by EEO activity, nor did she seem to draw any justifiable inferences in complainant's favor about the differences in treatment before and after the initiation of agency complaint no. HS06TSA001954. Consequently, we VACATE the agency's final order.
CONCLUSION
The Commission VACATES the agency's final action and directs the agency to comply with this decision and the Order below.
ORDER
In order to preserve complainant's right to have her removal claim adjudicated on the bases of age, sex, disability and retaliation, we direct the agency to hold the instant complaint in abeyance, pending the resolution of her workers' compensation claim. Within thirty (30) calendar days of the resolution of her workers' compensation claim (or if that claim has already been resolved, within thirty (30) calendar days of this decision becoming final), the agency shall begin processing this complaint in accordance with 29 C.F.R. � 1614.108. In order to initiate compliance on this appeal, the agency shall provide evidence to the Compliance Officer that the complaint is being processed consistent with 29 C.F.R. � 1614.108.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. 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
October 28, 2009
__________________
Date
1 We note that in her formal complaint, complainant did not check the "disability" box, although she had raised this basis with the EEO Counselor. In this regard, the Commission notes that the agency sent complainant a letter, warning her that a disability complaint would be dismissed for failure to state a claim due to the alleged preemption of the Rehabilitation Act by the Aviation and Transportation Security Act (ATSA). However, as noted, it was the "proposed" nature of the action and not the ATSA which was relied upon in the dismissal.
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0120093353
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013