James T. Blanding, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity CommissionFeb 20, 2009
0120073785 (E.E.O.C. Feb. 20, 2009)

0120073785

02-20-2009

James T. Blanding, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.


James T. Blanding,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Transportation Security Administration),

Agency.

Appeal No. 0120073785

Agency No. HS-05-TSA-001771

DECISION

On August 29, 2007, complainant filed an appeal from the agency's July 26,

2007 final decision 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 appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a transportation security screener at the Miami, Florida International

Airport. The record reveals that complainant was hired as a screener

on May 9, 2004 with a two-year probationary period.

On August 8, 2005, complainant filed an EEO complaint alleging that

he was discriminated against on the basis of race (African-American)

when on March 5, 2005, the agency terminated complainant during his

probationary period.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his 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 he was subjected to discrimination as alleged because

complainant did not prove that the agency's legitimate, non-discriminatory

reasons for its actions were pretext for unlawful discrimination.

Complainant did not submit a statement on appeal.

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").

In a claim such as the instant one which alleges disparate treatment

based upon race, and where there is an absence of direct evidence of such

discrimination, the allocation of burdens and order of presentation of

proof is a three-step process. Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 142 (2000) (applying the analytical framework described in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA

disparate treatment claim). First, complainant must establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that

a prohibited consideration was a factor in the adverse employment

action. Kimble v. Department of the Navy, EEOC Appeal No. 01983020

(Aug. 22, 2001).

The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has

articulated such a reason, the question becomes whether the proffered

explanation was the true reason for the agency's action, or merely

a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509

U.S. 502, 511 (1993). Although the burden of production, in other words,

"going forward," may shift, the burden of persuasion, by a preponderance

of the evidence, remains at all times on complainant. Burdine, 450

U.S. at 256.

In this case, complainant attempted to prove a prima facie case of

race discrimination by alleging that there were Caucasian screeners who

"had issues and were involved with incidents" who were not terminated.

However, complainant did not identify these screeners or specify the

"issues" that these screeners had. Hence, we determine that complainant

did not demonstrate that a similarly situated non-African-American

employee was treated more favorably than he was treated under similar

circumstances. We further find that complainant failed to provide any

other evidence from which an inference of race discrimination could

be raised. Thus, we find that complainant did not establish a prima

facie case of race discrimination.

Further, we find that the agency offered legitimate, non-discriminatory

reasons for terminating complainant during his probationary period.

Specifically, agency management stated that complainant was terminated

because complainant lost his baggage certification on February 11,

2005, and failed to take the examination to regain his certification;

complainant had attendance issues as early as October 2004; complainant

was absent for a significant amount of time during January and February

2005, and charged absent without leave (AWOL); and, on February 17,

2005, complainant caused an airport security breach by screening two bags

after being previously instructed not to screen bags. Management stated

that complainant was offered the services of the Employee Assistance

Program (EAP) and was provided with the opportunity to submit medical

documentation to justify his numerous absences. Complainant contends that

he was subjected to discrimination because the responsible management

official is Caucasian and set him up for termination. However,

complainant's bare assertions do not persuasively rebut the agency's

articulated reasons. We find that complainant failed to prove that the

agency's articulated reasons were pretext for unlawful discrimination.

Consequently, we find that the agency properly found no discrimination.

CONCLUSION

After a review of the record in its entirety, it is the decision of the

Equal Employment Opportunity Commission to affirm the agency's final

decision because the preponderance of the evidence of record does not

establish that discrimination occurred.

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

__February 20, 2009________________

Date

2

0120073785

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120073785