Thomas L. Clark, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 10, 2009
0120070900 (E.E.O.C. Mar. 10, 2009)

0120070900

03-10-2009

Thomas L. Clark, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Thomas L. Clark,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120070900

Hearing No. 100200400218X

Agency No. HS03TSA000856

DECISION

On November 29, 2006, complainant filed an appeal from the agency's

November 13, 2006 final order concerning his equal employment opportunity

(EEO) complaint alleging employment discrimination in violation of

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant was an

applicant for employment at New Orleans International Airport, Louisiana.

On May 23, 2003, complainant filed an EEO complaint alleging that he

was discriminated against on the basis of his disability (prior history

of cancer) when on October 16, 2002, he was notified that he was not

selected for a position as Transportation Security Screener, SV-0019-D.

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. The AJ assigned to the case found that, after

viewing the evidence in the light most favorable to complainant, a

decision without a hearing was appropriate as there were no genuine

issues of material fact in dispute. Accordingly, the AJ granted the

agency's motion for a decision without a hearing and issued a decision

on September 29, 2006, finding no discrimination. Specifically, the AJ

found that assuming, arguendo, complainant established a prima facie

case of disability discrimination, the agency nonetheless articulated

legitimate, nondiscriminatory reasons for its actions that complainant

failed to show were pretextual. The agency subsequently issued a final

order adopting the AJ's finding that complainant failed to prove that

he was subjected to discrimination as alleged. On appeal, complainant

reiterates his contention that the agency's articulated reasons for

not selecting him for the position at issue are a pretext for unlawful

disability discrimination.

ANALYSIS AND FINDINGS

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 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, it is not appropriate for an AJ to issue a decision without

a hearing. In the context of an administrative proceeding, an AJ may

properly issue a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003).

After a careful review of the record, the Commission finds that a decision

without a hearing was appropriate, as no genuine dispute of material

fact exists. 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, 134 (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).

Here, the record reflects that all applicants for transportation

security screener positions are required to pass both a physical

performance assessment (PPA) and a medical assessment. (Report of

Investigation, Exhibit F5; F7). The record also shows that complainant

passed the medical assessment, but did not pass the PPA. Specifically,

complainant failed a portion of the PPA referred to as the "box lift"

or "luggage lift," which involves having applicants simulate one of the

duties of a screener by requiring them to lift boxes and move them to

specific locations. (R.O.I., Exhibit F2; F3; F4). The record shows

that an applicant, such as complainant, who fails any portion of the

required testing is automatically disqualified from being selected for

the position of transportation security screener. (R.O.I., Exhibit

F5; F7). We concur with the AJ's finding that complainant has failed to

proffer any evidence to show that the agency's articulate legitimate,

nondiscriminatory reasons for its actions were a pretext for unlawful

discrimination.

Accordingly, we find that viewing the record evidence in the light most

favorable to complainant, there are no genuine issues of material fact.

We further find that the AJ appropriately issued a decision without a

hearing finding no discrimination. Therefore, we discern no basis to

disturb the AJ's decision and the agency's final order 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

March 10, 2009

Date

2

0120070900

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

5

0120070900