0120110575
01-13-2012
Robert C. Tencer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Robert C. Tencer,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120110575
Agency No. HS-0-9TSA-004863
DECISION
On October 29, 2010, Complainant filed an appeal from the Agency’s
September 29, 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Officer at the Agency’s Los Angeles
International Airport in Los Angeles, California. On May 10, 2009,
Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases
of his race (Caucasian), religion (Jewish), disability (physical and
mental), and in reprisal for prior protected EEO activity when:
1. on December 11, 2008, a coworker said “Heil Hitler,” goose-stepped,
gave the Nazi salute, and often wore an SS storm trooper helmet;
2. on January 1, 2009, a coworker remarked “you filthy Jews need to
get out of Palestine. Palestine does not belong to you filthy Jews”:
3. on January 6, 2009, a Supervisory Transportation Security Officer
(STSO) called Complainant’s terminal manager to discipline Complainant
for attending a career fair for job promotion;
4. on January 8, 2009, a second STSO stopped Complainant from filing
reports alleging hostile work environment incidents;
5. on an unspecified date, management banned Complainant from Terminal 1;
6. on an unspecified date, two Transportation Security Managers (TSM)
referred Complainant to the Employee Assistance Program (EAP);
7. on an unspecified date, management denied Complainant an opportunity
to participate in TSA Diversity Day;
8. on an unspecified date, management harassed and disciplined Complainant
for using his cell phone to check on the status of his son’s flight;
9. on unspecified dates, another management official harassed and
insulted Complainant;
10. on unspecified dates, management questioned Complainant and directed
him to write a report about two pennies and a metal washer a passenger
had handed to Complainant during secondary screening;
11. from December 11, 2008 through April 8, 2009, management did not
provide Complainant with a reasonable accommodation;
12. on April 8, 2009, management terminated Complainant’s employment.
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). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as
alleged. On appeal, Complainant reiterates his contention that he was
subjected to unlawful harassment and discrimination.
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”).
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). A single incident or group of isolated incidents
will generally not be regarded as discriminatory harassment unless
the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358
(11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of the anti-discrimination laws must be determined
by looking at all of the circumstances, including the frequency of
the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether it
unreasonably interferes with an employee’s work performance. Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers’ conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
An agency is responsible for acts of harassment in the workplace by
complainant’s co-workers where the agency knew (or should have known)
of the conduct and failed to take immediate and appropriate corrective
action. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999);
see Policy Guidance on Current Issues of Sexual Harassment (March 19,
1990); Villanueva v. Department of Homeland Security, EEOC Appeal
No. 01A34968 (August 10, 2006). In the instant case, we find that
with respect to the alleged harassment by Complainant’s coworkers in
claims (1) and (2), assuming arguendo the events occurred at alleged,
the Agency took immediate and appropriate measures to address the
harassment. Specifically, after Complainant reported to management that
he had been subjected to harassment by his co-workers, a Transportation
Security Manager was assigned to investigate the allegations. Report of
Investigation (R.O.I.) at 283. The record shows that upon completion of
the investigation, both of the co-workers were counseled and the alleged
harassment did not recur. Id.
With respect to the majority of Complainant’s remaining claims of
harassment, the record shows that they are either unsupported by any
credible evidence or specifically contradicted by witness statements. In
so finding, we note that the record contains affidavits from co-workers
and management officials stating that Complainant was never stopped from
filing reports, or prevented from attending the career fair or Diversity
Day. R.O.I., Exhibit F-3; F-4; F-6; F-7. Additionally, with respect to
claims (8) and (10) management found that Complainant violated Agency
policy by using his cell phone while on duty, and by placing money taken
from a passenger into his pocket. Id. at 390-397; 408; 410. Further,
the record shows that, as to claim (5), Complainant filed a report stating
that he had been exposed to hazardous fumes in Terminal 1 and, therefore,
management no longer assigned him to work in that location. Id. at 130.
Accordingly, we find that Complainant has not established that he was
subjected to hostile work environment harassment as alleged.
As to claim (12), the record shows that by letter, dated April 8, 2009,
Complainant was notified that his employment was terminated during
his trial period. R.O.I at 65. The letter cited violations of Agency
policy, including Complainant having placed money into his pocket that
had been given to him by a passenger he was screening, failure to report
for duty or call in to request leave, and using his cell phone during
duty hours. Id. The letter also cited numerous official discussions,
and a memorandum of counseling, addressing Complainant’s failures to
follow Agency policies and procedures as well as for unprofessional
behavior. Id. We find that all of the incidents cited in the notice
of termination are supported by the evidence of record and, as such,
we conclude that Complainant has not shown that the Agency’s actions
were motivated by discriminatory or retaliatory animus.
Finally, with respect to claim (11), the Rehabilitation Act prohibits
discrimination against qualified disabled individuals. See 29 C.F.R. §
1630. In order to establish that Complainant was denied a reasonable
accommodation, Complainant must show that: (1) he is an individual with
a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified
individual with a disability pursuant to 29 C.F.R. § 1630.2(m);
and (3) the Agency failed to provide a reasonable accommodation. See
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002)
(“Enforcement Guidance”). Under the Commission’s regulations, an
Agency is required to make reasonable accommodation to the known physical
and mental limitations of a qualified individual with a disability unless
the Agency can show that accommodation would cause an undue hardship. See
29 C.F.R. §§ 1630.2 (o) and (p).
Upon review of the entire record in this case, the Commission finds that
assuming, arguendo, Complainant is an individual with a disability,
he has not established that the Agency violated the Rehabilitation
Act. Specifically, the record does not show that Complainant ever
requested a reasonable accommodation. Here, the record shows
that Complainant filed several work related injury claims, provided
medical documentation to support these claims, and made a request for
extended leave under the Family and Medical Leave Act. R.O.I. at
300-388. Complainant has provided no evidence, other than his
unsupported assertion, to show that he at any time requested a reasonable
accommodation under the Rehabilitation Act. We note that agencies are
only required to accommodate known mental or physical limitations.
CONCLUSION
We AFFIRM the Agency’s final decision.
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
January 13, 2012
__________________
Date
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0120110575
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110575