0120091257
05-20-2009
Terry D. Collier, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Agency), Agency.
Terry D. Collier,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Agency),
Agency.
Appeal No. 0120091257
Agency No. HS-06-TSA-005143
Hearing No. 541-2008-00064X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 9, 2008 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.
Complainant alleged that he was subjected to harassment and a hostile
work environment on the basis of race (African-American) when:
1. on June 28, 2006, TSA management officials sent other employees to
look for you when you were away from the worksite on breaks;1
2. on August 16, 2006, a Supervisory Transportation Security Officer
(STSO) charged you with being absent without leave (AWOL) for a half
hour when the airport bus arrived late;
3. on September 11, 2006, an STSO denied his requests for a leave audit
and a request to review his personnel file;
4. on September 20, 2006, he was denied assistance in resetting his
online password;
5. on September 23, 2006, he discovered that his medical information
had been posted on the voluntary leave program website even though his
request to be included in the program was denied in September 2005;
6. on September 25, 2006, an STSO denied his sick leave request; and
7. on September 30, 2006, his leave and earnings statement reflected that
he was charged AWOL for eight hours when he called in sick on September
27, 2006.
Following the investigation into his formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On October
28, 2008, the AJ issued a decision by summary judgment in favor of
the agency. The agency fully implemented the AJ's decision in its
final order.
The AJ found that complainant did not show by a preponderance of
the evidence that he was discriminated against on the basis of race.
The AJ further found that complainant did not prove he was subjected
to harassment sufficiently severe or pervasive so as to render his
work environment hostile. The AJ noted in regard to claim 1, a male
Supervisory Transportation Security Officer (STSO) stated "I do not
recall any occasion, on August 26, 2006 or any other time, where I was
waiting in the Complainant's area and timing the Complainant as he went
to the bathroom." Regarding claim 2, the AJ noted that complainant was
charged AWOL when he was late for work. Regarding claim 3, the AJ noted
that according to a female STSO, she does not recall complainant "ever
requesting a leave audit and a review of his personnel information file
(PIF)."
Regarding claim 4, the AJ noted that according to the Program Assistant,
he does not recall speaking with complainant concerning his password.
PA further stated "however in reviewing the Complainant's closed account,
I noted that he completed coursework on August 30, 2006, September 24, 25,
26 and 30th along with other assignments in October and December. Thus,
at some point between September 20th and September 24th [Complainant's]
password must have been re-set in order to complete this online training
within OLC. It appears that he did get access to his OLC password and
was able to log-on to OLC during this period."
Regarding claim 5, the AJ noted that the record reflects that complainant
failed to check a box on his Volunteer Leave Transfer Program application
for donated leave form indicating he did not want medical information
to be posted.
Regarding claim 6, the AJ noted that according to another STSO (STSO2),
she denied complainant's sick leave request for September 27, 2006.
Specifically, STSO2 stated that complainant "requested to leave early
using sick leave but did not state a specific reason or provide medical
documentation. I denied the leave as we had already reached the total
screener allotment allowed to be off on any give day for that checkpoint
and shift."
Regarding claim 7, STCO2 stated that complainant was not placed on AWOL
for September 27, 2006. Specifically, STSO2 stated that on September
30, 2006, complainant filled out another SF 71 for 8 hours sick time and
provided medical documentation. Once medical documentation was provided,
SF 71 was approved by [identified STSO] and complainant was charged 8
hours sick time."
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, after a review of the record
in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that unlawful
discrimination occurred.2
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
May 20, 2009
__________________
Date
1 The record reflects that in his decision, the Administrative Judge
noted that the actual date of this alleged discriminatory incident was
August 26, 2006.
2 On appeal, complainant does not challenge an agency June 27, 2007
partial dismissal regarding another claim (that he was discriminated
against on the basis of reprisal for prior EEO activity when on June
28, 2006 and ongoing, he was subjected to harassment and a hostile
work environment while employed as a Transportation Security Officer
(SV-1801-D) at Denver International Airport in Denver, Colorado).
Therefore, we have not addressed this issue in our decision.
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0120091257
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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