Philip W. Bell, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 28, 2009
0120071655 (E.E.O.C. May. 28, 2009)

0120071655

05-28-2009

Philip W. Bell, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Philip W. Bell,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120071655

Hearing No. 410-2006-00155X-RPD

Agency No. HS 05-ICE-000559

DECISION

Complainant filed an appeal from the agency's final action dated January

10, 2007, finding no discrimination with regard to his complaint.

In his complaint, complainant alleged discrimination based on age (over

40), disability (knee injury), and in reprisal for prior EEO activity

when: (1) on October 5, 2004, he was terminated from his probationary

employment; and (2) in October and December 2004, he was not approved

to be a Contract Manager for a federal contractor.

Upon completion of the investigation of the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). On December

6, 2006, the AJ issued a decision without holding a hearing, finding no

discrimination. The agency's final action implemented the AJ's decision.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. 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). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

The Commission finds that grant of summary judgment was appropriate,

as no genuine dispute of material fact exists. 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 actions. With regard to claim

(1), the AJ stated that the agency initially hired complainant as a

Physical Security Specialist (Law Enforcement and Security Officer),

GS-09, effective October 6, 2003. When hired, complainant was informed

that as a condition of his continued, non-probationary employment,

he had to attend and complete Law Enforcement training at the Federal

Law Enforcement Training Center (FLETC). Complainant failed to do so.

Complainant acknowledged that he could not pass the physical requirements

needed to complete the FLETC program due to his physical limitations from

both his knees which were not fully disclosed to the agency when hired.

The AJ noted that complainant had torn meniscus in each knee, a torn

ACL in his right knee, and a dime-size hole in one keep cap, as well as

degenerative disease in both knees. In July 2004, he underwent surgery

to repair the torn meniscus in his right knee.

With regard to claim (2), the AJ noted that in October 2004, a federal

contractor, Paragon Security Systems, conditionally hired complainant as

a statewide (Alabama) contract administrator under a contract with the

agency. As a condition precedent to hiring anyone into this position,

Paragon had to get approval from the agency. On October 13, 2004, an

agency Supervisory Contract Specialist notified Paragon that complainant

was an unacceptable candidate for the position at issue because he did not

meet the stated experience or educational qualifications for the position.

Specifically, the Specialist stated that complainant did not possess

either four years of study or substantial and credible law enforcement or

military experience that demonstrated the capacity to manage a security

guard contract of the size and scope of the contract. She also indicated

that complainant did not possess five years of specialized experience.

After a review of the evidence in the record, the AJ determined, and

we agree, that complainant failed to rebut the agency's legitimate,

nondiscriminatory reasons for the alleged actions. Assuming (without

deciding) that complainant was an individual with a disability, we find

that complainant has not shown that any agency action was motivated by

discrimination. Furthermore, we find that complainant's request that

he be waived from the physical requirements of the FLETC program is

not a reasonable accommodation since those physical requirements were

essential functions of the position. Also, the record indicates that

complainant did not request an accommodation until after the issuance

of the notice of termination. Accordingly, the agency's final action

finding no discrimination is AFFIRMED.

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

5/28/09

__________________

Date

2

0120071655

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013