Chad T.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120182511 (E.E.O.C. Dec. 12, 2018)

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

Chad T.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120182511

Hearing No. 480-2016-00128X

Agency No. HS-TSA-02133-2014

DECISION

On July 11, 2018, 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
June 4, 2018 final order 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.

BACKGROUND

During the period at issue, Complainant was employed with the Agency as a Transportation
Security Officer at the Los Angeles International Airport in Los Angeles, California.

On February 19, 2015, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Hispanic) and color (brown) when, on
February 12, 2014, Complainant was removed from his position with the Agency.

The Agency accepted the complaint and conducted an investigation. The evidence developed
during the investigation reflects that Complainant was appointed to the position of
Transportation Security Officer (TSO) on May 13, 2007, subject to a two-year trial period.

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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On or around November 25, 2013, the Agency’s Personnel Security Division conducted routine
five-year vetting of all employees, including Complainant. Through its vetting process, the
Agency discovered that Complainant had been arrested and convicted of soliciting a prostitute in
2008.

Human Resources officials at Los Angeles International Airport confirmed that Complainant had
not reported an arrest or that he had been disciplined for off-duty misconduct as required by
Agency policy. The record discloses that after Agency officials confronted Complainant with
the information regarding his arrest, Complainant submitted a written statement on December 10,
2013, acknowledging the arrest and conviction in 2008, and stated that he served three days in
jail and completed seven days of community service. Documents obtained by the Agency from
the Los Angeles Sherriff’s Department confirmed that Complainant had been found guilty in a
trial by jury and sentenced to thirty days in jail, but was only required to serve three days in jail
for his conviction.

On January 8, 2014, the Agency proposed Complainant’s removal based on charges of Off-Duty
Misconduct, Failure to Report Arrest, and Misrepresentation. The misrepresentation charge
stemmed from the Agency’s discovery that Complainant was convicted of solicitation by a jury
on August 14, 2008, and sentenced to thirty days in jail on August 21, 2008. However, on
August 22, 2008, Complainant requested annual leave to travel out of the country.

The notice of proposed removal also addressed Complainant’s contention that he had, in fact,
reported his arrest to one of two Agency officials. The Agency found that there was no evidence
or documentation, other than his bare assertion, to support Complainant’s claim regarding
reporting and documenting the arrest. The Agency gave Complainant the opportunity to provide
additional evidence to support his contentions that his leave request was legitimately for the
purpose of travel and that that he had reported his arrest to management officials. Subsequently,
Complainant provide the Agency with copies of receipts for bus and airplane travel to Mexico
during the relevant period. Thereafter, in correspondence to Complainant dated on February 12,
2014, the Agency elected not to sustain the misrepresentation charge, but upheld its proposal to
remove Complainant from his TSO position for failing to properly report the criminal arrest and
conviction, as well as off-duty misconduct.

After the investigation into his EEO complaint, 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). Complainant timely
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s August 29, 2017 motion for a decision without a hearing, and issued a decision by
summary judgment in favor of the Agency on May 2, 2018. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

The instant appeal followed.
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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the
outcome of the case.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute. For the reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could
not find in his favor. Therefore, we find that the AJ properly issued a decision here by summary
judgment.

To prevail in a disparate treatment, claim absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing 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 802 n. 13. The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has
met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the
evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v.
Hicks, 509 U.S. 502, 519 (1993).

Assuming that Complainant established a prima facie case of race discrimination, we find further
that the Agency articulated legitimate, nondiscriminatory reasons, as detailed above for
removing Complainant from his TSO Positon.
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Specifically, the Agency determined that Complainant failed to disclose his arrest and conviction
in violation of Agency policy. The Agency indicated that, in accordance with its Table of
Offenses and Penalties, removal was warranted. While Complainant contended he advised an
Agency official of his arrest prior to its discovery by the Agency, he provided no evidence in
support of this claim when responding to the proposed removal, during the investigation into his
complaint, or on appeal. Upon review, we find that the Complainant failed to prove, by a
preponderance of the evidence, that the Agency’s articulated reasons for his removal were
pretext for discrimination on any alleged basis.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s decision by summary judgment, 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. 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.
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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

December 12, 2018
Date