0120072428
06-04-2009
Tony Shimmin, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Tony Shimmin,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072428
Agency No. HS060073
DECISION
On April 25, 2007, complainant filed an appeal from the agency's March
25, 2007 final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Transportation Security Screener, SV-0019-D, at the agency's facility
in Los Angeles, California. On July 7, 2004, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of
race (Caucasian) color (white), disability (work-related injury and
morbid obesity), age (45 at the relevant time), and in reprisal for
prior protected EEO activity when: (1) since approximately March 1,
2004, management denied him a reasonable accommodation in the form of
a light-duty assignment; and (2) on or about January 13, 2005, he was
terminated during his probationary period.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The FAD dismissed complainant's Rehabilitation
Act claims on the ground that they are preempted by the Aviation and
Transportation Security Act (ATSA), and therefore fail to state a claim
under EEO law. With respect to the remaining claims, the FAD concluded
that assuming, arguendo, complainant established a prima facie case of
discrimination on the bases of race, color, age, and reprisal, the agency
nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. The decision concluded that complainant failed to prove that
he was subjected to discrimination as alleged. On appeal, complainant
reiterates his contention that he was subjected to unlawful discrimination
and argues that the agency's dismissal of his Rehabilitation Act claims
was improper.
ANALYSIS AND FINDINGS
The Commission notes, as a preliminary matter, that it has jurisdiction
over the complaint at issue. The ATSA does not divest the Commission of
jurisdiction over complaints brought by security screeners against TSA
under the Rehabilitation Act or other statutes the Commission enforces.
While Congress gave TSA broad authority to establish terms and conditions
of employment for security screeners, that authority does not include
complete exemption from � 501 of the Rehabilitation Act and the other
employment discrimination laws. Chapman v. Department of Homeland
Security, EEOC Appeal No. 0120051049 (August 6, 2008); Adams v. Department
of Homeland Security, EEOC Appeal No. 0120054463 (August 31, 2007);
Getzlow v. Department of Homeland Security, EEOC Appeal no. 0120053286
(June 26, 2007). Accordingly, the EEOC has authority to hear complaints
under the Rehabilitation Act involving security screener positions.
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
With respect to complainant's termination, 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 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 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, 143 (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 agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the record shows that complainant was charged
absent without leave (AWOL) or placed in other non-pay status in excess of
22 workdays during a period beginning on December 28, 2003. The record
shows that these absences were not related to complainant's medical
conditions, and do not include the absences for which complainant provided
medical documentation. (Report of Investigation, Exhibit F-1; F-2; F-3).
Complainant was notified, by letter dated January 6, 2005, that he was
terminated during his probationary period as a result of his continued
unauthorized absences. (R.O.I., Exhibit F-9). Complainant failed to
show that the agency's articulated reasons for terminating him during
his probationary period were a pretext for unlawful discrimination.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of an otherwise qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. 29
C.F.R. � 1630.9. Reasonable accommodation includes modifications to the
manner in which a position is customarily performed in order to enable
a qualified individual with a disability to perform the essential job
functions. Revised Enforcement Guidance: Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, EEOC Notice
No. 915.002 (October 17, 2002). The Rehabilitation Act of 1973 prohibits
discrimination against qualified disabled individuals. See 29 C.F.R. �
1630.1. In order to establish that complainant was denied a reasonable
accommodation, complainant must show that: (1) he is an individual with
a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified
individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3)
the agency failed to provide a reasonable accommodation absent undue
hardship. See Enforcement Guidance, supra. For the sake of analysis
only we assume, without so finding, that complainant is an individual
with a disability within the meaning of the Rehabilitation Act. Next,
complainant must establish that he was a "qualified individual with a
disability," which is defined as an individual with a disability who,
with or without a reasonable accommodation, can perform the essential
functions of the position held or desired. 29 C.F.R. � 1630.2(m).
We find that complainant failed to establish that he was a qualified
individual with a disability. First, complainant acknowledges,
and his medical documentation supports the fact, that he could not
perform the essential functions of the position, with or without
reasonable accommodation. (R.O.I., Exhibit F-1; F-11). Additionally,
the record reflects that although complainant requested reassignment as
a reasonable accommodation, he failed to show that there was any vacant
funded position that met his medical restrictions during the relevant time
period at issue. (R.O.I., Exhibit F-1). Complainant has an evidentiary
burden in cases such as this to establish that it is more likely than not
that there were vacancies during the relevant time period into which he
could have been reassigned. See Hampton v. United States Postal Service,
EEOC Appeal No. 01986308 (August 1, 2002). Complainant can establish that
vacant funded positions existed by (1) producing evidence of particular
vacancies; or (2) showing that he was qualified to perform a job or
jobs which existed at the agency, and there were trends or patterns of
turnover in the relevant jobs so as to make a vacancy likely during the
time period. Id.
Here, we note that complainant alleges that other injured employees were
reassigned to clerical and/or administrative positions, but does not
identify any specific vacant, funded positions into which he could have
been reassigned. Id. Additionally, the record shows that complainant
was, in fact, provided with temporary light duty assignments, but that
there were no permanent light duty positions available for Transportation
Security Screeners. (R.O.I., Exhibit F-2; F-3). Therefore, we find
that complainant's claim of denial of accommodation in violation of the
Rehabilitation Act must fail. Accordingly, the FAD 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
June 4, 2009
Date
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0120072428
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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