0120063541
06-25-2007
Robert M. Henck, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Robert M. Henck,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 01200635411
Hearing No. 120-2005-00543X
Agency No. 060379
DECISION
On May 23, 2006, complainant filed an appeal from the agency's May 11,
2006, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
At the time of events giving rise to this complaint, complainant
applied for the position of Transportation Security Screener at the
Long Island MacArthur Airport (ISP) in Islip, New York. On October
26, 2002, complainant contacted an EEO Counselor and filed a formal
EEO complaint on January 4, 2003, alleging that he was discriminated
against on the basis of age (D.O.B. 02/23/35) when, on October 25, 2002,
he was notified that he failed the box lift test portion of the physical
abilities assessment process and subsequently was not selected for a
position as a Transportation Security Screener.
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). Complainant timely
requested a hearing. When complainant did not object, the AJ assigned
to the case granted the agency's September 7, 2005 motion for a decision
without a hearing and issued a decision without a hearing on February
22, 2006. The agency subsequently issued a final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged.
In her decision, the AJ found that complainant failed to establish
a prima facie case of discrimination on the alleged basis because
he did not introduce or proffer any evidence that anyone outside his
protected class who failed the box lift test was hired. The AJ then
assumed arguendo that complainant established a prima facie case of
discrimination on the alleged basis and found that the agency articulated
a legitimate, nondiscriminatory reason for its action; namely, complainant
was not hired because he failed to pass the box lift test, part of the
assessment process that tested for critical skills and qualifications
for the screener position. The AJ then found that complainant had not
shown that this reason is a pretext for discrimination. The AJ also
found that while complainant maintained in his affidavit that the box
lift test was designed to prevent older applicants from being hired,
he did not introduce or proffer any evidence to show that the box lift
test had a disparate impact on applicants over the age of 40 or that the
requirements were unrelated to the essential functions of a screener.
On appeal, complainant asserts that the box lift test itself is
discriminatory because it does not make any allowances for age differences
among the applicants. Complainant provides a newspaper article citing
the Cooper Institute's "12-Minute Test" for cardiovascular fitness, which
shows that older individuals can run less mileage in twelve minutes than
younger individuals and still be considered to be at a "fair to good"
fitness level. Complainant states that the box lift test is similar to
the fitness test because the former is "a running test only with boxes."
In reply, the agency requests that we affirm the final order.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, assuming complainant established a prima facie case of
discrimination based on age, we find that the agency articulated a
legitimate, nondiscriminatory reason for its action; namely, complaint
was not selected because he did not pass the box lift test, which was
a prerequisite for obtaining the position. The box lift test required
applicants to lift, carry, and place four standardized boxes with handles,
simulating pieces of luggage of different weights. Complainant was
required to move sixteen boxes to pass the three-minute test, but he
only moved fifteen. Additionally, we find that complainant failed to
show that the agency's explanation was a pretext for discrimination.
The record reveals that all applicants took the same test and received the
same instructions for the test. All individuals who failed the box lift
test were not selected regardless of age. The record does not create an
inference that complainant's age was the reason for his non-selection.
To establish a prima facie case of disparate impact, complainant must
show that an agency practice or policy, while neutral on its face, had
a disproportionate impact on members of the protected class. This is
demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged
practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
994 (1988) (the complainant must present "statistical evidence of a
kind and degree sufficient to show that the practice in question has
caused the exclusion"). Specifically, complainant must: (1) identify
the specific practice or practices challenged; (2) show statistical
disparities; and (3) show that the disparity is linked to the challenged
practice or policy. Id. The burden is on the complainant to show that
"the facially neutral standard in question affects those individuals
[within the protected group] in a significantly discriminatory pattern.
Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines
v. Department of the Navy, EEOC Petition No. 03990119 (August 31, 2000).
If complainant successfully establishes a prima facie case, then agency
liability turns on whether the adverse impact was attributable to a
"reasonable" factor other than age. Smith v. City of Jackson, Miss.,
544 U.S. 228, 239, 243 (2005) (the reasonableness inquiry does not ask
"whether there are other ways for the employer to achieve its goals that
do not result in a disparate impact on a protected class"). In this case,
the only evidence that complainant has presented to support his disparate
impact claim is a newspaper article, which cites a fitness test presenting
differing benchmarks for what constitutes a "fair to good" fitness level
depending on an individual's age and sex. Upon review of the record,
we find that complainant has failed to establish a prima facie case of
disparate impact because he did not provide sufficient statistical support
demonstrating a statistical disparity linked to the agency's policy of
using the box lift test as part of the screener assessment process.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 25, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
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0120063541
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036