Arthur F.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionApr 9, 20190120180231 (E.E.O.C. Apr. 9, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arthur F.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120180231 Agency Nos. HSTSA264722016 HSTSA007332017 DECISION On October 17, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 3, 2017, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer, SV-1802-E, at the Baltimore Washington International Airport in Baltimore, Maryland. On July 18, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of age (over 40) and reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120180231 2 1) On May 26, 2016, he learned that he was not selected for the position of Master Transportation Security Officer, SV-1802-F, at the Agency’s Coordination Center (Vacancy Announcement Number BWI-16-104644). Thereafter, on January 31, 2017, Complainant filed another formal complaint, alleging that he was subjected to discrimination on the basis of reprisal when: 2) On January 20, 2017, he learned that he was not referred for the position of Supervisory Transportation Security Officer (STSO), which was advertised under Vacancy Announcement Number BWI-16-228667. The Agency consolidated Complainant’s formal complaints for investigation. 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 Equal Employment Opportunity Commission 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 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). On appeal, Complainant contends that his resume clearly reflects his qualifications for the positions of Master Transportation Security Officer and Supervisory Transportation Security Officer. He alleges that the Agency misrepresented his interview performance to retaliate against him.2 To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. 2 To the extent Complainant desires on appeal to raise a claim of disparate impact regarding the Agency’s hiring practices, we note that the Commission has long held that it is inappropriate for complainants to raise new claims on appeal. Even if we considered this claim, we find that Complainant has not provided any evidence of a disparate impact involving his nonselections. 0120180231 3 McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we note that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For claim (1), the Agency averred that Complainant was not selected for the position of Master Transportation Security Officer because he received failing scores for the panel interview phase of the selection process. The Agency noted that the interview panel found Complainant’s responses to interview questions to be difficult to follow and not completely responsive to the questions asked. The Agency explained that none of the selectees received failing scores for any of their responses, while Complainant received failing scores for his responses to three questions. As for claim (2), the Agency explained that Complainant was not selected for the position of Supervisory Transportation Security Officer because his resume failed to demonstrate his qualifications for the position. The Agency noted that the human resources specialists who reviewed Complainant’s resume were unaware of his prior protected EEO activity. Complainant now bears the burden of establishing that the Agency's stated reasons were merely a pretext for discrimination. Complainant v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). In nonselection cases, Complainant can demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141712 (Dec. 3, 2015). After careful consideration of the evidence of record, including Complainant’s contentions on appeal, we find that Complainant has not shown that his nonselection for the position of Master Transportation Security Officer was due to his age and/or reprisal for prior protected EEO activity. While we recognize that subjective criteria in the hiring process may offer a convenient pretext, the record in this case shows that the Agency identified relevant competencies for the position and asked all candidates the same questions to assess their ability to perform in each competency. Unlike the selectees, Complainant provided rambling and incomplete answers to interview questions. Ultimately, Complainant’s poor interview performance and failing interview scores prevented him from advancing in the selection process. To the extent Complainant believes that he performed well during the interview and had the necessary qualifications for the position, we agree with the Agency that Complainant’s self-assessment is insufficient to show that he was plainly superior to the selectees. We see no evidence in the record to suggest that the Agency misrepresented his interview performance. 0120180231 4 Based on the totality of the record, we conclude that Complainant has failed to fulfill his burden of showing that the Agency’s articulated reasons were pretext for discrimination. As for claim (2), we agree with the Agency’s finding of no discrimination with regard to Complainant’s nonselection for the position of Supervisory Transportation Security Officer. Although Complainant alleges that his nonselection was due to reprisal for his prior protected EEO activity, the record shows that the human resources specialists who assessed his resume and found him to be unqualified were unaware of his prior EEO activity. Even if we were to assume that the Agency made a mistake in assessing his qualifications, Complainant has not presented any evidence to link the mistake to reprisal. Moreover, we see no evidence to suggest that Complainant was plainly superior to the selectees. Finally, we reject Complainant’s contention that on January 22, 2014, the Agency acknowledged that it had discriminated against him, as the record shows that the posting notice at issue pertains to a different person. CONCLUSION We AFFIRM the Agency’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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. 0120180231 5 The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 9, 2019 Date Copy with citationCopy as parenthetical citation