0120091391
06-18-2010
Gretchel Acosta, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Gretchel Acosta,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120091391
Agency No. HS-07-TSA-002285
DECISION
On February 7, 2009, complainant filed an appeal from the agency's January
21, 2009 final decision concerning her 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
ISSUES PRESENTED
Whether complainant established by a preponderance of the evidence that
the agency discriminated against her as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Transportation Security Officer, SV-1802-D, at the Luis Munoz-Martin
Airport in San Juan, Puerto Rico. The record reveals that complainant
took the Checkpoint Screen Image Interpretation Test on July 18, 2006.
Complainant was informed by the SPOT Transportation Security Manager
(STSM) that she failed the exam. Complainant retook the exam at a later
unknown date and was informed by STSM that she failed the exam again.
However, on June, 29, 2007, when complainant reviewed the Online Training
Records website regarding her training history, she noticed that it showed
that she had passed the Checkpoint Screening Image Interpretation Test.
She spoke with the Training Assistant Instructor (TAI) and who said he
would correct it. TAI changed complainant's score to "fail."
On December 2, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of her sex (female - pregnancy)
when on June 29, 2007, she became aware that she passed the examination
to become a Dual-Function Officer when she had previously been informed
that she had not passed.
At the conclusion of the investigation, 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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that she established a prima facie case
of discrimination and proved that the agency manipulates test scores in
order to discriminate against employees. Further, complainant argues
that the record supports her allegation that the agency failed to provide
her with a reasonable accommodation. Complainant also argues that the
agency failed to look at all the circumstances around her situation which
showed that the agency subjected her and her husband to harassment based
on their marital status and pregnancy. Complainant appears to argue
that she was constructively discharged as well.
The agency did not submit a reply brief.
ANALYSIS AND FINDINGS
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").
As a preliminary matter, with regard to complainant's allegations
concerning her requests for a reasonable accommodation, harassment, and
constructive discharge, we note that complainant mentions the reasonable
accommodation and harassment issues in her formal complaint. However,
the record reveals that the agency issued a Letter of Acceptance on
March 4, 2008, clearly indicating that the only issue accepted for
an investigation was the claim involving complainant's test results.
Further, in the Letter of Acceptance, the agency stated that complainant
had the opportunity to express any discontent with the claims accepted.
The record does not contain any evidence that complainant expressed that
the agency erred when it frame her claim. Accordingly, we find that the
agency did not err when it did not address complainant's allegations
of failure to reasonably accommodate, harassment, and constructive
discharge.
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).
She must generally establish a prima facie case by demonstrating that
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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case of
pregnancy discrimination, we turn to the agency's articulated reasons for
its actions. The Training Specialist (TS) provide affidavit testimony
stating that the tests at issue were taken on July 17 and 18, 2006.
TS Affidavit at 126. The history indicated "test completed" for the
first test and "test passed" for the second test. Id. In the "View
Details" section, it is possible to view complainant's test scores.
Id. at 127. Complainant failed the first exam with a score of
"84%/68%." Id. Complainant also failed the second exam with a
score of 63%/0%. Id. The TAI incorrectly coded the results of both
of complainant's exams. TAI Affidavit at 110. The TAI performed a
bulk entry, coding all employees as "passed" and did not identify those
employees who failed. Id. The TAI was asked to correct complainant's
scores to "fail." Id. Accordingly, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions.
We now turn to complainant's burden to prove by a preponderance of the
evidence that she was discriminated against. We find complainant failed
to offer any such evidence. Although complainant argues on appeal that
she has proved that the agency alters the scores of employees with the
intent to discriminate, we find the record evidence is devoid of any
such evidence. Further, nothing in the record supports her contentions
that the agency was motivated by discriminatory animus when she was
erroneously informed that she had passed the examinations.
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 FAD finding that complainant failed to establish that she was
discriminated against as alleged.
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
June 18, 2010
Date
2
0120091391
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091391