Arturo A.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120170818 (E.E.O.C. Nov. 29, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Arturo A.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120170818

Agency No. HS-TSA-24769-2015

DECISION

On January 3, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s November 23, 2016 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

On January 20, 2016, Complainant, a job applicant for the position of Transportation Security
Officer (TSO), SV-1892-D, at San Antonio International Airport in San Antonio, Texas, filed the
instant formal complaint. Complainant claimed that the Agency discriminated against him based
on race (African-American), disability, and age (over 40) when:

on September 17, 2015, he was not selected for a TSO position at the San Antonio
International Airport, advertised under Vacancy Announcement Number (VAN)
SAT-F09-P001.

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.
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After the investigation of the claim, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on
November 23, 2016, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
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, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant explained he was diagnosed with a lumbar spine condition in the 1990s and with
schizophrenia in approximately 1994. He noted his lumbar spine condition limited his ability to
lift, stand, bend, stoop, and maintain other positions which were strenuous. He stated he was
limited by his diagnosis of schizophrenia in relation to hearing, seeing, memory, hallucinations,
distractions, disorganized thoughts, perception, and sensation. He noted he was not taking any
medication for his impairments at the time of his non-selection. Complainant contended the
selecting officials may have been aware of his disabilities because he had requested
accommodations (not identified in the record) during the computer-based testing phase of the
selection process and those accommodations were granted.2 The record shows that those

2 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified
individual with a disability.
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applicants who were successful in the computer-based testing were then referred to an interview
panel.

Agency management responsible for the interviews denied knowledge of Complainant’s
disabilities and articulated legitimate, nondiscriminatory reasons for their decisions. The
Supervisory Behavior Detection Officer (Caucasian, over 40 years old, and no disability) was the
Lead Interviewer for the TSO position, along with a named female Transportation Security
Officer (Panelist 2). The Lead Interviewer stated that the interview of the candidates was
“structured and scored interview, so every question asked results in a score depending on how or
if they answered the question. The scores are totaled and combined between the two
interviewers...anything below a 3 is an automatic failure on any element.”

Further, the Lead Interviewer stated that the important factors to the duties and responsibilities of
the subject TSO position are teamwork, integrity, flexibility, interpersonal skills, critical thinking
and effective oral communication skills. The Lead Interviewer stated that all interviews were
conducted in person and the interview questions were asked of all of the candidates involved.
The record reflects that there were sixteen candidates, including Complainant.

The Lead Interviewer stated that during his interview, Complainant was professional and polite,
but he “did not necessarily perform well on the questions; he was all over the place and left out
information. He did not answer the questions completely.” The Lead Interviewer stated that
Complainant received an overall score of two on several of the elements and “a score of three or
below takes you out of the selection process.”

Panelist 2 (Caucasian, over 40 years old, and no disability) stated that during Complainant’s
interview, she scored him “between satisfactory and unsatisfactory because there were very few
questions he answered to the utmost. There was missing information.” Panelist 2 noted that
Complainant took “a lot of time thinking of something to answer the questions; even when he
answered, there were still blank parts. We had to ask additional questions to get the information;
we almost had to ask each question more than once.” Panelist 2 stated that Complainant did not
move on to the next phase of the selection process because he received less than an overall score
of three.

Panelist 2 explained that following the interviews, she and the Lead Interviewer recommended
two candidates to the selecting official because of their strong communication skills.
Complainant was not forwarded to the selecting official for final consideration.

After careful consideration of the record, we conclude that neither during the investigation nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination.

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Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of
the evidence of record does not establish that discrimination occurred.

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. 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
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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

November 29, 2018
Date