0120064881
05-08-2008
Loida E. Barrios, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Loida E. Barrios,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200648811
Agency No. TSA040895
Hearing No. 150200500638x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 2, 2006, final order 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Prior to her termination, complainant was a Security Screener at the
Miami, Florida, airport. She claimed discrimination based on national
origin (Hispanic - Cuban), sex (female), disability (shoulder injury),
and in reprisal for prior protected EEO activity when she was terminated
on November 19, 2004. Following an investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). On April 4, 2006
(mailed 4/7/2006), the AJ issued a decision without a hearing, finding
that the agency did not discriminate against complainant.
The AJ found the following facts: Complainant filed a workers'
compensation claim with the Office of Workers' Compensation Programs,
Department of Labor (OWCP), in May 2004. OWCP directed her to see Dr. X,
but complainant did not do so and did not obtain the necessary medical
documentation from Dr. X to return to work. She was absent without
leave (AWOL) for 44 workdays from July 15 through September 15, 2004,
and, although the agency was prepared to provide her work within her
restrictions and had offered her such work, she never provided the
proper medical documentation. Based on the foregoing, the AJ found
that the agency articulated legitimate, nondiscriminatory reasons for
terminating complainant, in that, she had unexcused absences. The AJ
concluded that she did not demonstrate pretext. Thereafter, the agency
implemented that decision.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56. 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). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).2
Applying the aforesaid standards, we find that the AJ's issuance of a
decision without a hearing was appropriate because there are no genuine
issues of material fact in dispute, and the preponderance of the evidence
of record does not establish that discrimination occurred. Therefore,
after a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
___05-08-2008_______________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 For purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability as alleged.
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0120064881
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064881