Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Aug 5, 2015

01-2013-0503-0500 (E.E.O.C. Aug. 5, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120130503

Hearing No. 450-2011-00165X

Agency No. HS-TSA-00512-2010

DECISION

On November 5, 2012, Complainant filed an appeal from what became the Agency’s final
action concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R.
§ 1614.405(a). Our review is de novo. For the following reasons, the Commission AFFIRMS
the Agency’s final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Federal Air
Marshal at the Agency’s work facility in Dallas, Texas. On April 26, 2010, Complainant
filed an EEO complaint wherein he claimed that the Agency discriminated against him on the
basis of his race (Caucasian) when on January 1, 2010, he discovered that an African-
American Federal Air Marshal was granted collateral office duty time during work hours to
complete a college degree, to use a government vehicle, time off to attend classes, and a
promotion to Supervisor, which he was not granted.

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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision on August 29, 2012.
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The AJ found that no race discrimination occurred. The AJ observed that in 2004,
Complainant requested a change from his irregular schedule in a mission status to a regular
schedule with set days off so he could attend college classes. The request was not granted as
Complainant was told it was impossible due to the scheduling system. The AJ noted that
Complainant did not make any further requests concerning pursuing higher education and that
he received a Bachelor of Arts degree in April 2008. The AJ stated that Complainant never
applied for a supervisory position. According to Complainant, he learned from another
Federal Air Marshal on January 1, 2010, that management had allowed the comparison, an
African-American employee in a ground-based assignment to attend college during work
hours, afforded him the use of a government computer for college, and selected him for special
assignment to the Operations Division in September 2003, and selected him as a Supervisor in
September 2006.

The AJ stated that in 2003, the comparison was selected through a vacancy announcement for
rotation to the Operations Division. The AJ noted that Complainant and the comparison did
not have the same supervisors. The AJ observed that a Federal Air Marshal stated that it was
common knowledge in the office during 2003-04 that the comparison worked on schoolwork
during duty hours. The comparison and the Supervisory Air Marshal in Charge (SAC) denied
that the comparison worked on college coursework during duty hours.

The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions.
According to the Agency, Complainant did not apply for the Operations Division in 2004. The
AJ noted that Complainant applied for the Operations Division in 2009, but was not selected.
The selectee was a Caucasian employee. The AJ stated that the comparison and his
supervisors denied that the comparison received an office computer and duty time to work on
his college coursework. The comparison stated in his affidavit that he did his schoolwork
before and after his assigned shift or during his lunch time.

In evaluating Complainant’s arguments to establish pretext, the AJ stated that the affidavits and
unsworn statements from others indicated that it was general belief and hearsay that the
comparison worked on college coursework during duty hours. The AJ found that there is no
evidence that the comparison was given supervisory permission to work on his college degree
during work hours, or to use a government computer or vehicle for school. The AJ noted that
Complainant and the comparison had different supervisors and Complainant never applied for a
supervisory position. The AJ found that there is no evidence that Complainant was similarly
situated to the comparison or treated differently than him. Further, the AJ stated that the
events at issue occurred in 2003-04, but Complainant did not contact an EEO Counselor until
2010.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final order pursuant to 29 C.F.R.
§ 1614.109(i).
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the SAC, who is African-American, gave preferential
treatment to the African-American comparison. Complainant argues that the comparison was
groomed for promotion as the SAC ensured that he was selected for special assignment in the
Operations Division, permitted the use of a government computer and duty time to attend
college on-line, and subsequently promoted to Supervisor after obtaining his Bachelors Degree,
which is a requirement for the position. Complainant maintains that the employees who
support his discrimination claim witnessed the discrimination first hand and their views were
not based on general belief or hearsay.

Complainant argues that the AJ erred in finding that he and the comparison were not similarly
situated or treated differently. Complainant maintains that he and the comparison shared the
same position and job title, and performed the same functions and duties prior to the alleged
discrimination. Complainant states that he and the comparison had the same 2nd and 3rd

line
Supervisors. Complainant states that the reason he did not apply for a supervisory position is
attributable to the discrimination. According to Complainant, he was not afforded the same
opportunity as the comparison to work on college coursework during duty hours. Complainant
notes that having a Bachelors Degree was a requirement for applying for a supervisory
position. Complainant further argues that the doctrine of laches should not bar his claim given
that he did not know in 2004, when he submitted his request for a consistent schedule, and was
denied, that he was being discriminated against. Complainant states that he did not know he
had been discriminated against until January 2010, when he had a conversation with a
coworker.
In response, the Agency asserts that Complainant and the comparison were not similarly
situated. The Agency states that they held different positions, worked under different
supervisors and the comparison had a special assignment in the Operations Division at a
different time than Complainant. The Agency argues that consequently whether or not the
comparison used duty time and/or an Agency computer for a personal pursuit is immaterial.
The Agency maintains that even if the SAC permitted the comparison to use duty time for
college work, Complainant has not submitted evidence that the SAC condoned such a practice
due to the comparison’s race. The Agency points out that from 2003-10, assignments to the
Operations Division reflect that non-African Americans were selected, including Caucasians.
The Agency notes that when Complainant applied for this position in 2009, a non-African
American was selected.

ANALYSIS AND FINDINGS

It is evident that Complainant is claiming that he was not afforded the same opportunities to
progress as the comparison. However, Complainant was not similarly situated to the
comparison. Complainant was in a mission status and the comparison was in a ground-based
assignment. They did not have the same supervisor. Complainant sought to shift from an
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irregular schedule to a regular schedule with set days off so he could attend college classes.
That request was denied. Agency officials stated that the comparison did not receive or
request a schedule change, nor did he receive time off to attend college classes. Complainant
has not presented persuasive evidence that refutes the Agency’s position. Complainant claims
that the comparison was allowed to perform his college coursework during duty hours. Even if
the comparison was granted permission to do so, we discern no evidence that Complainant was
denied a similar privilege. The denial of a schedule change that might have made it easier for
Complainant to pursue a college degree did not render Complainant similarly situated to an
individual in a ground-based assignment, with a different supervisor, who may have been
doing college coursework during his duty hours.

Complainant was not rendered aggrieved by the comparison possibly having the use of a
government vehicle or a government computer. There is no indication that Complainant
requested and was denied the use of such items. With regard to the comparison being
promoted to a supervisor position, we observe that Complainant did not apply for a supervisor
position. Therefore, Complainant was not aggrieved with respect to that aspect of his claim.
Upon review of the record, we find that Complainant has failed to establish a prima facie case
of race discrimination. We concur with the AJ’s decision granting summary judgment for the
Agency.

CONCLUSION

The Agency’s final action is AFFIRMED.

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
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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:

______________________________ Hadden signature August 5, 2015
Carlton M. Hadden, Director Date
Office of Federal Operations