0120070495_Abbott
03-10-2009
Robert J. Abbott,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070495
Agency No. HS060007
DECISION
On October 28, 2006, complainant filed an appeal from the agency's
September 25, 2006 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
On October 13, 2002, complainant was hired as a probationary
Transportation Security Screener at Washington-Dulles International
Airport, located in Dulles, Virginia. As mandated by the Aviation and
Transportation Security Act (ATSA), all agency employees must undergo
and pass an employment investigation, which includes a background
investigation and a credit check. As a result, complainant's employment
was contingent upon the passing of the investigation. The credit check
revealed that complainant had tax liens against him totaling $6,006
and other past due debts which totaled $15,950. The agency concluded
that these amounts indicated financial irresponsibility. The agency
asserts that complainant was issued a Letter of Inquiry, and was notified
that he had until May 28, 2003 to resolve or explain these matters.
Complainant failed to respond to the letter, and avers that he never
received it. On September 23, 2003, complainant was given a Separation
Letter, and was discharged for lack of suitability for the position.
Complainant filed a formal complaint of discrimination on the bases
of sex (male), age (DOB: 08/05/1948), and disability (pinched nerve
in his spinal column) when, on September 23, 2003, he was terminated
from the position of Transportation Security Screener, SV-0019-G, at
Washington-Dulles International Airport.
At the conclusion of the investigation, complainant was provided 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 he was subjected to discrimination as alleged.
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 EEOC Management
Directive 110, 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").
Complainant alleges that he was disparately treated on the bases of his
disability, age, and sex when he was terminated from his Transportation
Security Screener position. To prevail in a disparate treatment claim
such as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by
demonstrating that he was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we will assume, but do not find, that complainant has established
his prima facie cases of disability, age, and sex discrimination.
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, the agency explained that complainant's credit
check indicated that he was financially irresponsible, and raised serious
questions as to whether he could function in a position requiring a high
degree of integrity. The agency determined that his financial conduct
compromised his suitability for the position of Transportation Security
Screener, and as a result, his termination was warranted.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, nondiscriminatory reasons are pretext for
discrimination. Complainant alleges that his credit history changed for
the better prior to September 2003. We agree with the agency that the
documentation that complainant presented was issued at least 14 months
after the credit check, and does not reflect what his credit history
was at the time of the agency's credit check. Complainant also alleges
that his credit report contained errors, and he presents documentation
that demonstrates that he has only a tax lien against him, which was
an error. Even if it is true that the credit report contained errors,
this does not establish that the agency's decision to terminate him
was based upon discrimination. Further, complainant alleges that
he never received the Letter of Opportunity, and therefore had no
opportunity to reply. Even assuming that this was true, complainant
has still not established that the agency's articulated reasons for
his termination were more likely than not pretext for discrimination.
The record supports the agency's assertion that their actions were based
on complainant's negative credit report, and not because of a protected
EEO basis. Complainant has not offered any evidence that would suggest
that discriminatory animus played a role in the agency's decision.
Therefore, we affirm the agency's final decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision, because a preponderance of the evidence in the record
does not establish that discrimination existed.
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
March 10, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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