0120080716
09-10-2009
Louis Flores, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Louis Flores,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120080716
Hearing No. 480-2006-00101X
Agency No. HS-05-TSA-001885
DECISION
Complainant filed an appeal from an agency's final action dated October
24, 2007, finding no discrimination with regard to his complaint.
In his complaint, dated July 12, 2005, complainant, a Transportation
Security Screener at the Santa Barbara Airport, alleged discrimination
based on age (over 40) and disability (carpel tunnel syndrome, left
neck, and shoulder strain) when in December 2004, he was not selected
for positions as Lead Transportation Security Screener under Vacancy
Announcement TSA-05-0241 and as Supervisory Transportation Security
Screener under Vacancy Announcement TSA-05-0259.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On September 18, 2007, the AJ, after a hearing, issued a decision
finding no discrimination, which was implemented by the agency in its
final action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that complainant
had established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for the alleged
non-selections. The AJ noted that before complainant was hired in his
current position with the agency in November 2002, he worked as head of
security for the Oxnard Union High School District for 12 years and as a
peace officer for the California Youth Authority for four years. The AJ
also noted that in 2003 and 2004, complainant applied for promotion to
either a Lead or Supervisor Screener position approximately 10-12 times
and two of those positions were the subject of this complaint.
The agency indicated that in November 2004, complainant applied for the
positions at issue. On November 23, 2004, the agency's Recruitment
Center in Arlington, Virginia, evaluated the applicants and issued
certificates of eligibles for the positions. There were 13 candidates
for each of the positions. Complainant was qualified and was listed on
both certificates of eligible for the positions. The Selecting Official
(SO) stated that he reviewed all of the candidates' application packages.
After he consulted the Office of Personnel Management Guide on promotions,
the SO decided not to conduct interviews because the time required
interviewing all candidates and the number of supervisors and manager
who would be involved in those interviews would be too disruptive to the
Santa Barbara Airport screening operations. Instead, since he was in
his new position as the Assistant Federal Security Director of Screening
only for 60 days, he sought input regarding the selections from the
screening supervisors and managers at the regularly scheduled meeting
in December 2004, and except one, they were all currently working at
the airport and familiar with the candidates, including complainant.
The SO stated that for the positions at issue, he was looking for the
candidates' core values of integrity, intervention, and team work.
The SO also stated that he wanted to look at the candidates' displayed
performance at the airport and their potential for being a Lead or
Supervisor. The SO indicated that he gathered input from the managers and
supervisors and asked each of them for their opinions on the candidates.
Based on their feedback, he rated and ranked the candidates and selected
the top four in each category. The SO stated that the supervisors and
managers did not specifically identify who they thought were the top
four candidates for the positions. Rather, he translated their comments
into a numerical ranking and selected four selectees for each position.
The SO's Director approved his selections. The SO stated that the most
of supervisors and managers did not recommend complainant because he
was not as dedicated to the job as some of other screeners and he lacked
interpersonal skills with the customers and his fellow employees.
After considering all the evidence and testimony, the AJ determined that
the agency articulated legitimate, nondiscriminatory reasons for the
alleged nonselections. Specifically, the AJ stated that the SO based his
selections on the input he received from the managers and supervisors, and
while they were not uniform in their opinions of the various candidates,
none recommended complainant for either of the positions at issue.
The AJ stated that the testimony at the hearing from those managers
and supervisors, including the SO, which she found to be credible and
consistent (but not identical), clarified the selection process. The AJ
stated that complainant failed to show by a preponderance of the evidence
that the agency's proffered reasons were pretextual. Specifically,
the AJ indicated that although it was undisputed that complainant had
a great deal of experience prior to coming to the agency, none of it
was at an airport and the SO clearly indicated that he did not take
such experience into consideration in his selections and there was no
evidence that he was required to do so.
Upon review, we find that the AJ's factual findings of no discriminatory
intent are supported by substantial evidence in the record. Furthermore,
complainant failed to show that his qualifications for the positions were
plainly superior to the selectees' qualifications or that the agency's
actions were motivated by discrimination. See Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995). We do not address
in this decision whether complainant is a qualified individual with
a disability. Furthermore, we note that complainant has not claimed
that he was denied a reasonable accommodation.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
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
9/10/09
__________________
Date
2
0120080716
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120080716