0120072614
08-06-2009
Thomas A. Mair, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Thomas A. Mair,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072614
Hearing No. 230-2005-00272X
Agency No. HS-04-TSA-001329
DECISION
On December 11, 2006, complainant filed an appeal from the agency's
November 22, 2006 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Transportation Security Screener at the agency's facility
in Traverse City, Michigan.
On November 4, 2004, complainant filed an EEO complaint wherein he
claimed that he was discriminated against on the bases of sex (male),
age (48), and reprisal when he was terminated from his position.
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 and the AJ held a hearing on August 7-8, 2006.
At the conclusion of the hearing, the AJ issued a decision finding that
no discrimination occurred.
The AJ found that complainant was terminated because he failed to
check or conduct a calibration or verification on the explosive trace
detection machine (ETD) used to detect explosive devices. The AJ
noted that the policy in effect during the relevant period required
that the ETD be calibrated or verified each day prior to use and every
eight hours, as well as at the end of every shift by the Supervisor.
Agency policy also required that a screener be removed for failure to
conduct an operational check at the start of a shift, even if this was
the screener's first offense. An agency investigation determined that
complainant did not calibrate the ETD on March 1, 2004.
The AJ found that complainant failed to establish a prima facie case
of discrimination under each of the alleged bases. With regard to the
claims of sex and age discrimination, the AJ found that the three female
comparisons were not true comparators for various reasons. With regard
to the claim of reprisal, the AJ found that complainant had not engaged
in prior EEO activity. The AJ noted that complainant had questioned the
official in authority on operational issues, but that is not considered
EEO activity. The AJ found that the agency articulated a legitimate,
nondiscriminatory reason for complainant's removal. The AJ observed that
the agency stated that complainant had not calibrated the ETD and that
failure to do so was a basis for removal even if it was a first offense.
The AJ found that complainant failed to establish pretext as he did not
present any credible evidence that the reason for his termination was
not because he failed the calibration test.
The agency subsequently issued a final order implementing the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant contends that the official who removed him
personally disliked him and that reprisal was initiated against him due
to complaints he made while carrying out the duties of his job.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We observe that complainant argues that the removing official's personal
dislike of him led to his removal. Assuming, arguendo, that this
was true, a personality conflict nevertheless does not establish that
the removal constituted discrimination on any of the alleged bases.
Complainant has not demonstrated that any of his prior questioning of
the agency's security operations constituted EEO activity. Therefore,
complainant failed to establish a prima facie case of reprisal.
Complainant noted during the hearing that the agency changed its policy
subsequent to his termination and no longer required that failure
to calibrate the ETD machine be grounds for automatic removal. This
argument, however, does not persuasively establish that discrimination
was a factor in complainant's removal as mandatory removal for this
offense was clearly agency policy at the relevant time. Additionally,
the comparisons cited by complainant were not similarly situated to him
and do not support complainant's position. The record reveals that one
comparison was demoted for reasons unrelated to a failure to calibrate,
another comparison resigned instead of being terminated for failure to
calibrate, and the final comparison had a different Supervisor and her
removal was not initiated by complainant's Supervisor. Complainant has
failed to establish that the agency's reasons for his termination were
pretext. Upon review of the record, the Commission finds that the AJ's
decision finding no age, sex or reprisal discrimination is supported by
substantial evidence.
Accordingly, the agency's final action finding no discrimination is
AFFIRMED.
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
August 6, 2009
__________________
Date
2
0120072614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120072614