01a60309
04-05-2006
Roosevelt Griffin, Jr., Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Roosevelt Griffin, Jr. v. Department of Homeland Security
01A60309
April 5, 2006
.
Roosevelt Griffin, Jr.,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 01A60309
Agency No. 05-0989
Hearing No. 210-2005-00082X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant was appointed as a Transportation
Security Screener, SV-0019-D, at Chicago O'Hare International Airport,
Chicago, Illinois, on September 8, 2002. His appointment was subject to
completion of a one-year probationary period. On or about May 8, 2003,
complainant was arrested by an officer of the Chicago Police Department
and subsequently charged with the offense of possession of a controlled
substance (heroin).<0> Complainant was notified by letter dated May 28,
2003,<0> that he would be terminated effective June 2, 2003, based on
his �off-duty misconduct� on May 8, 2003.<0> Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal EEO complaint on October 6, 2003, alleging that the agency
discriminated against him on the basis of race (Black) and color (black)
when his employment as a probationary Transportation Security Screener
was terminated on July 18, 2003.<0>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 31, 2005, the agency moved for a
decision without a hearing finding no discrimination. On April 8, 2005,
complainant filed a response to the agency's motion. On August 10, 2005,
the AJ issued a decision without a hearing, finding no discrimination.
In his decision, the AJ found that complainant failed to establish a prima
facie case of racial discrimination under a disparate treatment framework.
Specifically, he found that complainant failed to identify a similarly
situated probationary Transportation Security Screener who was treated
more favorably after being arrested. The AJ noted that complainant's
Caucasian comparator (not terminated subsequent to his arrest) was a
permanent employee who had already completed his probationary period.<0>
The AJ additionally found that complainant failed to provide other
evidence which supports an inference that unlawful discrimination
motivated the decision to terminate him.
The AJ then found that the agency articulated a legitimate,
nondiscriminatory reason for its action; namely, the Chicago police
arrested complainant for possession of a controlled substance. The AJ
noted that the second-level supervisor (S2) determined, by talking to
the police and reading the police report, that complainant had engaged in
the conduct for which he was arrested.<0> The AJ found that S2 further
determined that complainant's conduct was job-related in that it would
undermine the public's trust in the agency. The AJ noted that the
agency's policy regarding probationary employees allows supervisors to
terminate screeners at any time once the supervisor has determined that
corrective action will not resolve the screener's performance or conduct
problem. As to pretext, the AJ noted that although complainant alleged
that he did not possess a controlled substance, he offered no evidence
to dispute the factual basis of the arrest. The AJ further found that
complainant testified he had �no idea� whether his managers intentionally
discriminated against him and he provided no evidence to contest S2's
testimony that he did not even know complainant Additionally, although
complainant argued that he should have been given the opportunity to
explain himself and take a drug test, he offered no evidence to show that
the agency's stated reason was not the real reason for his termination.
The AJ concluded that complainant failed to establish that the agency's
reasons were pretexts for management's race-based animus toward him
because he is Black.
The AJ also addressed complainant's claim of disparate impact, noting that
complainant points to statistical evidence which shows that the agency's
termination differential between White and Black employees during their
probationary period greatly exceeds the agency's hiring differential.
The AJ notes, however, that complainant did not show whether the other
individuals who were terminated were comparable to him, or what the
reasons were for their terminations. The agency's final order implemented
the AJ's decision.
On appeal, complainant, through counsel, contends that the agency
fabricated an �admission� of heroin use by complainant. Additionally,
complainant points out that the first-level supervisor states that he
decided to terminate complainant, while the second-level supervisor
asserts that it was he who made the termination decision. Additionally,
complainant asserts that although the second-level supervisor stated
twice under oath that he was unaware of complainant's race when making
the decision to terminate him, the police report clearly reflected
complainant's race as �Black.� Complainant also alleges that the
AJ erred when he assumed the credibility of S2, and in so doing
erroneously determined that complainant was lacking in credibility.
In response, the agency explains that it was the first-level supervisor
(S1) who recommended complainant's termination, and S2 who approved the
termination. The agency additionally argues that despite complainant's
assertion that he should not have been terminated unless and until he was
convicted, agency policy does not require a conviction before terminating
a probationary employee. The agency requests that we affirm its final
order.
As an initial matter we note that, as this is an appeal from a FAD 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). The allocation of burdens and order of presentation of
proof in a Title VII case alleging disparate treatment discrimination is
a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, assuming arguendo that complainant established a prima facie
case of race discrimination, the agency has articulated legitimate,
nondiscriminatory reasons for its action; namely, the agency terminated
complainant based on complainant's off-duty conduct; namely, his
possession of heroin. Complainant has not presented any persuasive
evidence that the agency's stated reason was a pretext for race or
color discrimination.
In order to establish a prima facie case of discrimination under a
disparate impact analysis, complainant must show that the challenged
practice or policy had a disproportionate impact on members of his
protected class. Specifically, complainant must: (1) identify the
specific practice or policy challenged; (2) show a statistical disparity;
and (3) show that the disparity is linked to the challenged policy or
practice. Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988).
If complainant establishes a prima facie case of disparate impact,
the burden shifts to the agency to provide a business justification for
the challenged action. See Section 105 of the Civil Rights Act of 1991,
Pub.L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991). Pursuant to the Civil
Rights Act of 1991, once a prima facie case is established, the agency
has the burden of proving that the challenged practice is job-related and
consistent with business necessity. If the agency satisfies this burden,
complainant may nevertheless prevail if he provides an alternative
employment practice that would accomplish the same goal with a less
adverse impact on his protected class.
In the instant case, complainant has failed to show that the policy of
terminating probationary employees solely on the basis of an arrest has
caused a statistical disparity between the number of Black individuals
who were hired and the number of Black individuals who were terminated,
as compared with White individuals.
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). We find that the AJ's
decision referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant,
we conclude that complainant failed to present evidence that the agency's
actions were motivated by discriminatory animus toward his race or color.
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
April 5, 2006
__________________
Date
0 1According to the police report, complainant was observed making a
narcotics transaction. There is no dispute that complainant was off-duty,
but was in his TSA uniform when he was arrested. Complainant asserts
that his arrest was based on racial profiling.
0 2The record indicates that complainant was sent a second termination
letter on July 18, 2003, in error. The agency subsequently apologized
to complainant for the confusion it caused.
0 3On June 3, 2003, the charges against complainant were dismissed.
Complainant was not, however, reinstated to his Transportation Security
Screener position.
0 4Complainant has also raised a claim of disparate impact; namely,
that the agency's policy of terminating probationary employees solely
on the basis of an arrest has caused a substantially adverse impact upon
Black employees.
0 5The record indicates that the comparator was initially indefinitely
suspended pending a conviction for drug charges, and subsequently
discharged.
0 6A Screening Manager for the agency stated that on May 8, 2003,
he received a telephone call from an Officer of the Chicago Police
Department, who stated that complainant had been arrested for possession
of a controlled substance (heroin), and that complainant had admitted
to using heroin for approximately one year. Complainant denies that he
made any such admission.