0120072909
10-08-2009
Melissa Hill, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Melissa Hill,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072909
Hearing No. 460-2006-00070X
Agency No. TSAF-04-1076
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated September 27, 2006, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. In her complaint, complainant claimed that
she was discriminated against on the basis of her disability (back and
arm injuries) when on September 17, 2004, she was terminated from her
position of Transportation Security Screener, SV-0019-D, at the Bush
Intercontinental Airport in Houston, Texas.1
The agency accepted the complaint for investigation. Upon completion
of the investigation, the agency informed complainant of her right to
elect either a final action by the agency or a hearing before an EEOC
Administrative Judge (AJ). On December 27, 2005, complainant requested
that the agency issue a final action. Subsequently, on March 10, 2006,
complainant requested a hearing before an EEOC AJ.
On September 27, 2006, the agency issued a final action wherein
it dismissed the complaint on the grounds of failure to state a
claim. The agency determined that complainant's claim of disability
discrimination under the Rehabilitation Act was preempted by the Aviation
and Transportation Security Act (ATSA). According to the agency, Congress
authorized the agency to establish additional qualifications required
for employment of security screeners notwithstanding any provision
of law. The agency interpreted the notwithstanding provision as an
indication of Congressional intent that this clause should override
conflicting provisions of any other section. The agency stated that
it thus has the authority to determine the employment standards that
apply to its security screeners notwithstanding other laws, including
the Rehabilitation Act.
On May 8, 2007, the AJ dismissed the complaint for lack of jurisdiction
on the grounds that complainant's hearing request was submitted after
she had already elected to have the agency issue a final action. The AJ
noted that the agency issued a final action on September 27, 2006.
On appeal, complainant acknowledges that she initially requested a final
decision from the agency on her complaint and thereafter requested a
hearing before an AJ on the same complaint. Additionally, complainant
states that the agency's EEO Office labeled her claim as a disability
complaint but that it has also become a claim of race discrimination.
Complainant contends that she received a more severe punishment than
a Black male security screener who was also accused of sleeping while
on duty. Complainant states that this comparison only received a three
day suspension. According to complainant, a Black male was terminated
for sleeping while on duty, but was subsequently rehired by the agency.
Upon review, we find the AJ's dismissal of complainant's hearing
request for lack of jurisdiction was appropriate. Specifically, the
record shows that complainant first requested that the agency issue
a final action on her complaint on December 27, 2006. Subsequently,
on March 10, 2006, complainant requested a hearing before an EEOC AJ.
Accordingly, since complainant first requested the agency issue a final
action on her complaint, we find she is precluded from having a hearing
before an AJ on her complaint.
The Commission finds that it has jurisdiction over the complaint at
issue. The ATSA does not divest the Commission of jurisdiction over
complaints brought by security screeners against the agency under
the Rehabilitation Act or other statutes the Commission enforces.
While Congress gave the agency broad authority to establish terms and
conditions of employment for security screeners, that authority does not
include complete exemption from � 501 of the Rehabilitation Act and the
other employment discrimination laws. Chapman v. Department of Homeland
Security, EEOC Appeal No. 0120051049 (August 6, 2008), request for
reconsideration denied, EEOC Request No. 0520080805 (December 11, 2008);
Adams v. Department of Homeland Security, EEOC Appeal No. 0120054463
(August 31, 2007); Getzlow v. Department of Homeland Security, EEOC
Appeal No. 0120053286 (June 26, 2007), request for reconsideration
denied, EEOC Request No. 0520070839 (October 12, 2007). Accordingly,
the Commission has authority to hear complaints under the Rehabilitation
Act involving security screener positions. Id.
In Getzlow, the Commission found that the complainant must show that
he meets the ATSA-mandated standards in order to be qualified under
the Rehabilitation Act. Getzlow, EEOC Appeal No. 0120053286. Not all
ATSA-mandated standards will conflict with the Rehabilitation Act. Id.
However, if a conflict exists between the two standards, the disputed
standard will supersede any Rehabilitation Act requirements to the
contrary. Id. Here, it does not appear that complainant is challenging
an ATSA-mandated qualification standard. Rather, she appears to be
claiming that she was discriminatorily terminated from agency employment
for alleged poor work performance and/or misconduct. Therefore, this
matter should not have been dismissed for failure to state a claim and
we find complainant is entitled to final action by the agency on her
complaint. Moreover, based on the fact that complainant is alleging
that her termination was motivated by discrimination based on her race,
we order the agency to conduct a supplemental investigation on the basis
of race.
The agency's final action dismissing the complaint on the grounds of
failure to state a claim is REVERSED. This complaint is REMANDED to
the agency for further processing pursuant to the Order herein.
ORDER
The agency is ordered to process the remanded claims in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the
complainant that it has received the remanded claim of disability and
race discrimination (termination) within 30 calendar days of the date
this decision becomes final. The agency shall issue to complainant a
copy of the investigative file within 120 calendar days of the date this
decision becomes final, unless the matter is otherwise resolved prior
to that time. After completion of the supplemental investigation on
race discrimination, the agency is ordered to issue a final action on
the complaint within 30 calendar days.
A copy of the agency's letter of acknowledgment to complainant and a copy
of the final action must be sent to the Compliance Officer as referenced
herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
October 8, 2009
__________________
Date
1 During informal EEO counseling and in her formal complaint, complainant
also claimed that she was discriminated against on the basis of reprisal
when in April 2004, the agency falsified her timesheets. The agency
stated in its final action that complainant told an EEO Specialist that
this issue had been resolved and that she had been correctly paid for
the time period in question. On appeal, complainant does not challenge
the agency's position as to this claim and we find the falsification of
timecards issue is no longer an issue in the complaint.
??
??
??
??
2
0120072909
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120072909