0120141459
11-16-2016
Rosendo F.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Transportation Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosendo F.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security,
Transportation Security Administration,
Agency.
Appeal No. 0120141459
Hearing No. 510-2012-00378X
Agency No. HSTSA218682012
DECISION
On February 21, 2014, Complainant filed an appeal from the Agency's February 20, 2014, final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish that he was subjected to a hostile work environment based on race (African American), color (brown), disability, and reprisal (prior EEO activity) when:
(1) on January 17, 2012, he was harassed for wearing his TSA jacket;
(2) he was denied a break on January 31, 2012 and April 28, 2012;
(3) on March 14, 2012, he was denied two rest breaks and a thirty minute lunch break;
(4) on April 18, 2012, he received a medical disqualification notice asking him to submit additional medical documentation;
(5) on April 20, 2012, he was instructed to remove his bag from the checkpoint;
(6) he was issued a letter of guidance on April 20, 2012 for texting on a government issued phone;
(7) on April 21, 2012, he was denied practice time for his Practical Skill Evaluation test;
(8) he was treated in a "disrespectful, taunting, mocking" manner by a manager;
(9) he learned on April 21, 2012, he had been denied overtime from February 24, 2012 through March 24, 2012;
(10) he received a memorandum for wearing sunglasses; and
(11) he was not accommodated for his disability and denied extensions of light duty under TSA policy.
BACKGROUND
The following facts were articulated in the AJ's January 21, 2014 decision without a hearing:
Complainant worked as a Behavioral Detection Officer (BDO) at the Agency's Orlando Florida International Airport facility in Orlando, Florida. Complainant filed a prior EEO complaint in 2011. Complainant requested a light duty assignment in November 2011. The request was granted, and Complainant was advised of Agency policies on light duty assignments. He was given the assignment of working the Exit Lane and Ticket Document Checking at the Screening Checkpoint. The light duty assignment was extended in January 2012, and modified slightly. Complainant continued to work in a light duty status until May 22, 2012, when he went into a leave without pay status until his disability retirement application was approved.
Between January and April 2012, Complainant was subjected to a series of events by Agency management which he alleges were discriminatory. On January 17, 2012, Complainant was wearing his jacket while working the Exit Lane. A manager advised Complainant that he was in violation of Agency policy, to which Complainant responded that the cold air was blowing on him and aggravating his back. Complainant was allowed to continuing wearing the jacket, but the manager requested a doctor's note for the future. Complainant continued to wear the jacket beyond January 17th, but never provided the doctor's note. The manager never spoke to Complainant about the jacket again.
On January 31, 2012, Complainant was scheduled to work from 12:30 pm until 9:00 pm. According to Complainant with 30 minutes left in his shift, he informed the Supervisory Transportation Security Officer (STSO) that he had not received either of his 15 minute breaks, to which the STSO replied, "[g]et your ass off light duty then." Complainant asked the STSO "if he had a problem with [him] or if he was a racist." The record reflects that Complainant was relieved from duty at approximately 8:58 pm. Another STSO witnessed the exchange on January 31 and stated that Complainant was "highly confrontational and threatening" in his approach.
Complainant stated he did not receive one of his 15 minute breaks or lunch on March 14, 2012. He alleges that he radioed one of the STSOs, but that he did not respond. Agency management did not recall whether or not Complainant received his breaks on this day, but stated that he could have radioed another STSO if he hadn't gotten a response on his break earlier. At the point that Complainant advised another STSO that he hadn't received a break, it was too late in the shift to give him the break.
On March 23, 2012, Complainant was using his work telephone, deleting text messages and notifications. A Transportation Security Manager (TSM) asked Complainant if he was texting, to which Complainant said he was not. Complainant was working in his light duty screening checkpoint assignment. According to management, Complainant was not assigned to work as a BDO at that time, and he should not have been texting on that phone.
On April 18, 2012, the Deputy Assistant Federal Security Director for Screening (DAFSDS) issued Complainant a letter regarding his light duty status. The DAFSDS advised Complainant that, as of April 18, he had exhausted approximately 140 days of the maximum 180 days allowed for light duty assignments. He was also advised that, if he remained unable to perform the full functions of his position after the 180 days, "the Agency may have no other choice but to remove [him] from service due to medical disqualification." Complainant was granted a temporary (15-day) extension of the light duty assignment in order to consider his options and to obtain medical documentation necessary to request a final forty-five (45) day extension of his light duty assignment. The DAFSDS identified specific medical information needed to extend the light duty assignment.
On April 20, 2012, Complainant brought a backpack to the checkpoint. The TSM on duty asked the STSO to tell Complainant to remove the bag pursuant to the Agency's local policy that no one should bring their bag to the check point, but place it in a locker. All the lockers were filled when Complainant reported to his shift, so he brought it to the checkpoint, and explained that his "meds" were in his bag. Complainant returned to the locker room later and found an available locker for his bag.
In early April, 2012, the BDO Manager informed Complainant and other BDOs that they would be taking a Practical Skill Evaluation ("PSE"). She advised Complainant that he could have practice time. In prior years, the training department would offer an hour to practice prior to the exam, however, that was not going to be offered that year. Complainant was not performing BDO duties at that time, due to his light duty assignment at the checkpoint, and as such, the BDO manager was not in charge of his daily schedule and did not know when he would be taking his test. Complainant did not contact the BDO Manager prior to the exam to request practice time, but on the day of the test, he asked the STSO for practice time. He was told this was not possible. Complainant passed the exam on the first try.
On April 21, 2012, at approximately 4:15 p.m., Complainant was asked if he observed a little boy run up the exit lane. Complainant responded by asking the LTSO if he saw the boy, to which the manager responded questioning whether Complainant was calling her a liar. Complainant did not answer.
Complainant contends that on April 21, 2012, he learned he was denied one hour and forty-five minutes of overtime, which he had requested from February 24, 2012 to March 24, 2012. Complainant stated that he was told that he only worked overtime in less than 15 minute intervals, and overtime can only be issued in intervals of at least 15 minutes.
On April 28, 2012 at 8:05 pm, Complainant advised a Lead Transportation Security Officer (LTSO) that he had not received a lunch break, and was subsequently advised that there was not enough staff to give him his lunch break. The LTSO recalls that someone came to give Complainant a break at 2:00 p.m., but that it did not occur because Complainant advised that he wanted to check his email in the computer lab. At 8:15 pm, Complainant was told to take his lunch break. He did and at 8:51 pm, Complainant returned and clocked out at 9:00 for the end of his shift.
On May 2, 2012, Complainant made another request for light duty and presented updated medical documentation. Complainant was advised that his options included (1) requesting extended leave (either accrued or leave without pay), although he was advised this could not be unlimited and must have a reasonable expectation date for his return to work; (2) requesting information on the status of his reconsideration request for his disability 399 retirement application at OPM; or (3) resigning until he has recovered sufficiently to perform the full duties of his position, at which time he may be eligible for reemployment. The 180 day period to work in a light duty status expired on May 21, 2012. As of May 22, 2012, Complainant went into a LWOP status, as he had no more accrued leave. Complainant separated from the Agency, effective June 2, 2012, on disability retirement.
On May 12, 2012, Complainant was wearing sunglasses as he was walking into the checkpoint. The STSO on duty approached Complainant and asked him why he was wearing tinted glass, and if he had a prescription. Complainant responded that "walking into the checkpoint with sunglasses on is not problematic because [he] was not at a duty station." The STSO told him to remove the glasses. Another management official observed Complainant wearing sunglasses at the checkpoint on May 12, 2012, but was unsure whether he was on duty, or coming to or leaving the checkpoint. The STSM was contacted that day about the incident and issued a memo of record later in the day to Complainant. Pursuant to TSA Management Directive (MD) 1100.73-2, TSO Dress and Appearance Responsibilities, applying to all officers, including BDOs "[s]unglasses or eyeglasses that are faddish in style or color (e.g., mirrored, opaque, iridescent or fluorescent colors, etc.) shall not be worn while on duty. Sunglasses or darkly tinted glasses shall not be worn inside the building."
On April 4, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him as alleged in the statement of "Issues Presented" above. Additional issues were accepted for investigation on May 29, 2012. 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 Administrative Judge. Complainant timely requested a hearing. The Agency filed a motion for a decision without a hearing on September 24, 2013. The AJ assigned to the case determined that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on January 21, 2014. Specifically, the AJ found that Complainant failed to demonstrate that he was discriminated against as alleges, and that the Agency articulated legitimate non-discriminatory reasons for each of the actions it took, which Complainant did not establish were pretext for discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant request that the Commission reverse the AJ's decision and that all evidentiary information submitted be re-examined for reconsideration in his favor. Complainant contends that the Agency has attempted to cover up, conceal, mislead and manipulate the truth. He is requesting an opportunity to bring forth witnesses to substantiate his assertions in the form of a hearing.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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").
ANALYSIS AND FINDINGS
We must 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. Dep't of Def., 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).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment & Reprisal
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and Rehabilitation Act cases alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, color, disability and reprisal, we find that the Agency articulated a legitimate, non-discriminatory reason for each of the actions taken by Agency management. The record reflects that Complainant was in violation of Agency policy when he reported to duty wearing a jacket. Additionally, when Complainant was advised that if he needed to wear the jacket he should provide medical documentation to support this requirement, he never provided any such documentation, but continued to wear the jacket without being addressed by management. Each time Complainant was denied a break, the record reflects that he did not contact the necessary personnel until it was too late in his shift to rectify the situation. The record reflects that once Complainant was given a break right before it was time for him to clock out of his shift. With regard to the incidents involving the backpack, sunglasses, and texting on the BDO telephone, the record reflects that in all incidents, Complainant was in violation of Agency policies. Complainant was advised of the violations in accordance with Agency policy.
Complainant failed to demonstrate that he was entitled to practice time for the PSE test under his current work arrangements, nor did he establish that he was harmed in any way by not having designated practice time. Complainant was informed when his light duty request was first granted that the arrangement was temporary. He was advised of the procedures to follow in obtaining an extension of the arrangement, and to obtain the maximum amount of extended time under Agency policy. Complainant did not demonstrate that any conduct on the part of the Agency was based on any discriminatory animus because of his prior EEO activity. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find no evidence of unlawful motivation on the instant facts.
Harassment/Hostile Work Environment
With respect to any contention by Complainant that he was subjected to a hostile work environment with respect to any of the actions by Agency management, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). We concur with the AJ's findings that the allegations complained of in the instant matter did not rise to the level of actionable harassment.
CONCLUSION
Based on a thorough review of the record, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate he was subject to discrimination as articulated above in the statement of Issues Presented. The Agency's final order adopting the AJ's decision therefore is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_11/16/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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