0120090054
02-20-2009
Tabrea N. Foxworth, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Tabrea N. Foxworth,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120090054
Hearing No. 510-2008-00013X
Agency No. HS-06-TSA-002413
DECISION
Complainant filed an appeal from the agency's September 8, 2008 final
order concerning her 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 order.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Transportation Security Screener at the agency's Fort
Lauderdale International Airport facility in Fort Lauderdale, Florida.
Complainant was hired on March 6, 2005. Complainant's position required
that she fulfill a two-year probationary period. On November 4, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of race (African-American), sex (female), and
disability (pregnancy) 1 when:
On June 10, 2006, complainant was terminated during her
probationary period for excessive absences, tardiness and being
absent without leave (AWOL).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
unopposed motion for a decision without a hearing and issued a decision
without a hearing on August 8, 2008.
The AJ observed the following undisputed facts listed in this paragraph.
Complainant was hired in March 2005. In July 2005, complainant notified
the agency that she was pregnant. Prior to the time complainant so
notified the agency, she had been absent or late for work on numerous
occasions. Between March 2005 and August 2005, she was absent or late on
eleven occasions. Complainant was ultimately placed on leave restriction
in September 2005, the terms of which required her to notify specific
agency officials if she expected to be late or absent from work and to
provide specific documentation for each use of sick leave or emergency
leave. The AJ noted that complainant did not dispute that she did not
always follow the terms of the leave restriction. Complainant's habit of
arriving late, failing to provide required documentation for her absences
and incurring disciplinary actions continued through the time complainant
left work to deliver her baby. Complainant returned to work in March
2006, and was scheduled for recertification testing. Complainant did not
report for the testing scheduled for her. Thereafter, the AJ recounted
additional occasions when complainant did not report for work on time
and in addition, did not abide by the terms of her leave restriction.
Complainant was notified that she would be terminated from her position
on June 9, 2006.
The AJ found that none of the material facts remained in dispute.
Complainant did not dispute the agency's record of her time, leave
and attendance issues; nor did complainant dispute that she received
the progressive disciplinary actions issued to her in an effort to
address her attendance issues. The AJ found that complainant did not
satisfy the normal requirements of her job to be regular in attendance.
Significantly, the AJ noted that complainant's attendance issues began
soon after she was hired and continued after she returned from maternity
leave. Nothing in the record, the AJ found, related complainant's
attendance problems to a complicated or difficult pregnancy. Rather,
the AJ noted that complainant was permitted to work light duty during her
pregnancy before she took approved maternity leave. Accordingly, the
AJ found that complainant did not establish a prima facie case of race,
sex or pregnancy discrimination because she failed to show that she met
the normal requirements of her job with respect to attendance. The AJ
additionally found that complainant failed to identify any similarly
situated employees not in her protected classes who received preferential
treatment. The AJ found that none of the employees complainant offers
for comparison were similarly situated.2 Accordingly, the AJ found
that complainant did not show that she was subjected to discrimination
on the basis of race or sex, including pregnancy discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
ANALYSIS AND FINDINGS
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).
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 the instant case, we find no reason to disturb the AJ's decision.
We find the AJ properly found that no genuine issues of fact remain in
dispute and that the AJ properly issued her decision without a hearing.
Assuming for the sake of argument only that complainant established a
prima facie case on all alleged bases, we still find no discrimination.
We find that complainant does not dispute the AJ's conclusion that she was
absent from work or late on numerous occasions beginning soon after she
was hired and continuing after she returned from maternity leave through
the time she was separated from the agency. We concur that the other
employees complainant identifies as being treated better than she was
treated, despite also having leave issues, were not similarly situated in
the relevant aspects as described by the AJ in her decision. We find the
agency's reasons for its decision to terminate complainant's employment
with the agency are well supported by the record and that complainant
was provided with counseling, written warnings and the benefits of
progressive discipline, identifying the specific time and attendance
behavior the agency found unacceptable and providing her with several
opportunities to correct her attendance and leave documentation habits.
CONCLUSION
We AFFIRM the agency's final decision finding no discrimination.
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
February 20, 2009
__________________
Date
1We note that The Pregnancy Discrimination Act (Pub.L. 95-955) is an
amendment to Title VII which prohibits, among other things, discrimination
in employment because of sex. The Pregnancy Discrimination Act makes it
clear that "because of sex" or "on the basis of sex," as used in Title
VII, includes "because of or on the basis of pregnancy, childbirth or
related medical conditions." Therefore, Title VII prohibits discrimination
in employment against women affected by pregnancy or related conditions.
We shall also consider complainant's claim of discrimination because of
pregnancy as a Title VII claim.
2 One employee complainant identified was not a probationary employee.
The other two employees did not have records of excessive absences
or tardiness that complainant had, particularly after being placed on
leave restriction.
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0120090054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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