0120070872
10-02-2007
Robert S. Millard, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Robert S. Millard,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070872
Agency No. HS-05-0943
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision dated October 25, 2006, dismissing his formal complaint of unlawful 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On January 22, 2004, complainant, an agency Transportation Security Screener, filed the instant formal compliant. Therein, complainant claimed that he was subjected to unlawful employment discrimination on the bases of disability (diabetes, high blood pressure, heart condition and degenerative knee) and in reprisal for prior EEO activity (for filing complaints with managers, elected officials, government agencies, pro-union stance and questioning the policies and directives of TSA management) when:
1. he was counseled between July 23 and 24, 2003;
2. on August 7, 2003, he was placed on administrative leave; and
3. on October 16, 2003, he was terminated from his employment as a Transportation Security Screener, SV-0019-D at Manchester Airport, Manchester, New Hampshire.
In its October 25, 2006, the agency dismissed reprisal as a basis. The agency determined that complainant had no prior EEO activity.
Regarding complainant's complaint on the basis of disability, the agency dismissed this matter for failure to state a claim pursuant to 29 C.F.R. 1614.107(a)(1). Specifically, the agency found that the Aviation and Transportation Security Act (ATSA), enacted following the terrorist attacks of September 11, 2001, specifically authorized the agency to determine the employment standards that apply to screeners notwithstanding the Rehabilitation Act. The agency concluded, therefore, that complainant's claim on the basis of disability is in conflict with the ATSA.
Upon review, the Commission finds that the agency properly dismissed reprisal as a basis. Specifically, we find that a review of the record reveals no evidence of prior EEO activity by complainant either as participation in the EEO complaint process or protected oppositional activity based the anti-discrimination statutes.
Regarding complainant's claim on the basis of disability, the Commission determines that this matter was improperly dismissed. Contrary to the agency's assertions, the ATSA does not divest the Commission of jurisdiction over all complaints involving security screener positions that raise claims under the Rehabilitation Act or any other statute that the Commission enforces. Getzlow v. Department of Homeland Security, EEOC Appeal No. 0120053286 (June 26, 2007). Rather, a determination of whether a complaint by a security screener states a claim under the Rehabilitation Act must be made on a case-by-case basis, and will depend on whether there is a conflict between the ATSA-mandated qualification standards and the complainant's Rehabilitation Act claim. Id. Here, the agency rejected complainant's claims simply because they were filed under the Rehabilitation Act, which the agency incorrectly states is superseded by the ATSA.
In Getzlow, the Commission found that the complainant must show that he meets the ATSA-mandated standards in order to be qualified under the Rehabilitation Act. Not all ATSA-mandated standards will conflict with the Rehabilitation Act. However, the Commission determines that when a conflict exists between the two standards, the disputed standard will supersede any Rehabilitation Act requirements to the contrary. Here, it does not appear that complainant is challenging an ATSA-mandated qualification standard. Rather, he simply appears to be arguing that he was discriminatorily counseled; placed on administrative leave; and terminated from agency employment for alleged poor work performance and/or misconduct. Therefore, without more, there is inadequate support for the agency's conclusion that the complaint on the basis of disability should be dismissed.
Accordingly, the agency's final decision dismissing complainant's reprisal as a basis is AFFIRMED. The agency's decision dismissing complainant's complaint on the basis of disability is REVERSED. Complainant's complaint on the basis of disability is REMANDED to the agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (complainant's disability claim) in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to complainant a copy of the investigative file and also shall notify complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the complainant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848, Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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 (Z1199)
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 that the Court appoint an attorney to represent you and that the Court 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 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
October 2, 2007
__________________
Date
2
0120070872
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120070872