0120102131
06-01-2012
Joey D. Davis, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Joey D. Davis,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120102131
Hearing No. 470-2009-00051X
Agency No. HS-08-TSA-005272
DECISION
Complainant filed an appeal from the Agency's March 22, 2010 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. 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 Master Behavior Detection Officer (BDO) at the Agency's Detroit Metropolitan Wayne County Airport facility in Detroit, Michigan. On October 13, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On April 1, 2008, Complainant was disqualified from possible consideration for a Transportation Security Management position, Vacancy Announcement Number TSA HQ 20080480.
2. On June 7, 2008, Complainant was issued a Letter of Reprimand for violating the standard operating procedure.
3. On March 20, 2009, Complainant was not selected for the position of Transportation Security Manager, (Screening Manager) Vacancy Announcement Number TSA 080682.
4. On March 26, 2009, Complainant received a performance award smaller than an award given to his peers.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on January 25, 2010, and January 26, 2010. Thereafter, the AJ issued a Decision on January 29, 2010.
In his Decision, the AJ found that as a preliminary matter, Complainant withdrew a claim of harassment prior to the beginning of the hearing process. With respect to Complainant's complaint, the AJ found that Complainant failed to establish a prima facie case of discrimination on either race or reprisal with respect to any of the incidents described in the complaint.
Specifically, the AJ noted that Complainant failed to identify any similarly situated employees not in his protected classes who were treated better than he was treated. Regarding claim (1) (non-selection for a Transportation Security Manager), the AJ noted that Complainant and other candidates applied for the supervisory position, Transportation Security Manager. The AJ found that Complainant's application did not indicate that he had the required one year of supervisory experience necessary to qualify for the position. Accordingly, the AJ found that Complainant was not considered for the position by the selecting official. The AJ found that assuming Complainant had established a prima facie case of discrimination based on race or reprisal, that Complainant had not shown that the Agency's reasons for disqualifying him from the selection process for failing to indicate on his application that he met the stated requirements for the identified position.
With respect to claim (2) (letter of reprimand), the AJ found that Complainant received discipline for failing to follow the Agency's standard operating procedure (SOP) when he cleared an explosive trace detection (ETD) alarm that had been activated by a bag during the baggage screening process. The AJ found that Complainant's supervisor (S1) stated that Complainant's position as a BDO did not authorize him to clear an alarm and that Complainant violated the Agency's SOP regarding ETD alarms when he did so. The AJ found that Complainant did not identify any other employees in the BDO position, also supervised by S1, who similarly had cleared ETD alarms and were not similarly disciplined. The AJ considered Complainant's contention that another BDO (E1) had improperly x-rayed an unattended bag, also in violation of the Agency's SOP for unattended baggage. Complainant stated that E1 did not receive discipline. However, the AJ found that Complainant and E1 were not similarly situated, because E1 did not report to S1. Accordingly, the AJ found no discrimination for claim (2).
Regarding claim (3) (not selected for Screening Manager position), the AJ found that the evidence showed that Complainant was not included on the best qualified list submitted to the selecting official because he had a record of active discipline at the time of the selection process. The AJ observed that two Agency officials stated that the Agency's Detroit office maintained an unwritten policy of not including for management positions any applicant who had recently received discipline. The AJ found that Complainant did not identify any candidates who were interviewed, considered, or promoted who had current discipline. Accordingly, the AJ found that Complainant did not show that the Agency's reasons for eliminating him from the best qualified list were false.
The AJ found that for 2008-2009, Complainant received an award of $750 for his performance (claim (4)). The AJ considered Complainant's belief that he should have received a greater award because in previous years, Complainant stated his award for similar performance was $2,600. The AJ found that Complainant's award of $750 was for having met the performance standard for his position. The AJ observed that Complainant's supervisors stated that Complainant performed his duties but did not perform extra duties. Further, the AJ noted that employees receiving awards of $1,000 or $1,200 did not have active discipline in their records at that time. The AJ found that Complainant did not present evidence that other employees performing as he did received greater awards or that employees receiving higher awards did not perform extra duties. The AJ found that Complainant did not show that he was treated differently than similarly situated employees not in his protected groups.
The AJ concluded that Complainant did not show by a preponderance of the evidence that the Agency's actions were motivated by discrimination. The Agency subsequently issued a Final Decision adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination on the bases of race or in reprisal for his prior EEO activity as alleged.
ANALYSIS AND FINDINGS
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, at � 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). 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 Constr. 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. Tex. Dep't of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find that substantial evidence supports the AJ's Decision. Specifically, we concur with the AJ that Complainant did not identify any similarly situated employees, not in his protected groups, who were treated any better than Complainant was treated under the same or similar circumstances. We do not find that Complainant was similarly situated to E1 in that E1 was supervised by a different supervisor than Complainant at the time she violated the Agency's procedures with respect to an unattended bag. We further concur with the AJ that Complainant did not show that the reasons cited by the Agency for its actions were a pretext to mask discrimination with respect to the failure of the Agency to qualify Complainant for the position for which he applied (insufficient time in grade) and that his current record of discipline rendered him ineligible for promotion. We note that Complainant failed to show that more likely than not his performance should have been rated at a level higher than "mets expectations" (claim (4)). We find the evidence persuasive that Complainant's performance rating determined the award that he received and that Complainant did not show that his award was less than the performance award received by employees in his position who were similarly rated as meeting the expectations of the position. We find that Complainant did not show that more likely than not the Agency's reasons were false or unbelievable and a pretext for discrimination.
CONCLUSION
We AFFIRM the Agency's Final Order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 1, 2012
__________________
Date
2
0120102131
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102131