0120102459
09-30-2010
Jeffery A. Teamer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Jeffery A. Teamer,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120102459
Hearing No. 330-2006-00040X
Agency No. HS-04-TSA-001255
DECISION
Complainant filed an appeal from the Agency's April 15, 2010 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. 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 Agency's George Bush Intercontinental Airport facility in Houston, Texas. On January 3, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), color (black), disability (physical), and age (43) when:
Complainant's employment was terminated on September 15, 2004.
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 requested a hearing. By letter dated March 16, 2006, Complainant notified the AJ and the Agency that his health had deteriorated. Complainant advised the AJ that he was unable to tend to his legal affairs due to his impaired health. Subsequently, by order dated April 11, 2006, the AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant had attendance issues throughout his employment with the Agency including absent without approved leave (AWOL), tardiness, failing to call in when Complainant expected to be late or needed to request leave; and failure to follow procedures when requesting leave. The Agency found that Complainant was charged with altering a note supposedly from his physician to cover dates of absence that Complainant's physician never approved. Agency Final Decision, April 15, 2010, (Ag Decision) at 1. Ultimately, the Agency terminated Complainant's employment on September 14, 2005. Id.
For purposes of analysis, the Agency assumed that Complainant had established a prima facie case of discrimination on one or more of the bases identified in his complaint. The Agency's Decision considered the totality of the record, and specifically, the reasons stated by Complainant's superiors for the Agency's actions to remove him from his position. Id. at 3. In doing so, the Agency found that the deciding official (D1) proposed Complainant's removal from the Agency as a result of his absence without official leave, failure to follow procedures to request leave and for falsification of medical documentation. D1 determined that the Agency would not employ someone who had demonstrated a lack of honesty and integrity. Id.
The Agency further found that Complainant failed to establish that the Agency's reasons for its actions were a pretext to mask discrimination. Specifically, the Agency considered that Complainant accused the Agency of secretly trying him and presumed that he was guilty of the offenses with which he was charged because of his race, color, age, gender and his disability. The Agency, however, found that Complainant provided no evidence that the reasons articulated the D1 for his removal were false and that discrimination was the real reason he was terminated from his position. Id.
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
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). He must generally 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 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, 120 S.Ct. 2097 (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).
In the instant case, we assume for the sake of argument, without so finding, that Complainant established a prima facie case of discrimination on the bases cited in his complaint, including disability. We find the record supports the Agency's Final Decision. We observe that in his Affidavit of June 21, 2005, Complainant admits that he altered the medical documentation identified by the Agency in its proposal to remove him from his position. Complainant explains that he printed the altered document from a collection of scanned and stored personnel documents that he maintains at home. Complainant's June 21, 2005 Affidavit at 10. We further find that the record contains voluminous time and attendance documentation demonstrating the attendance issues (tardy, AWOL and requests for leave) cited by the Agency as the additional grounds for removal, supported with statements of Complainant's supervisors regarding the circumstances of Complainant's reporting or failing to report for his assigned shift and the efforts to provide Complainant with opportunities to comply with the Agency's established attendance policies. See, generally, Report of Investigation, July 1, 2005.
On appeal, and in his complaint, Complainant argues that he encountered difficulty contacting the officials he was required to notify when Complainant needed to request unscheduled leave. Response to Agency's (DHS) Final Decision finding no discrimination, May 15, 2004, at (numbered) 1. However, we find that Complainant has provided no evidence that any other employee experienced the same or similar difficulties following the Agency's leave policies. We do not find that Complainant has established that the Agency's reasons for its decision were unworthy of belief and that discrimination was the real reason for his termination.
Based on a thorough review of the record, specifically addressed herein, we AFFIRM the Agency's Final 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
September 30, 2010
__________________
Date
2
0120102459
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102459