Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Jul 18, 2014

0120131561 (E.E.O.C. Jul. 18, 2014)

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
(Transportation Security Administration),
Agency.

Appeal No. 0120131561

Agency No. HS-TSA-01439-2011

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
February 8, 2013 final Agency decision (FAD) concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Federal
Air Marshall with the Agency’s Federal Air Marshall Service at the Boston Field Office in
Boston, Massachusetts. In November 2010, Complainant wrote a letter to his second-level
supervisor, the Supervisory Air Marshall-in-Charge (SAC), inquiring about career
advancement. Complainant explained that his daughter suffers from a serious health condition
and her medical treatment could not be duplicated elsewhere. Complainant believed that others
within management were aware of his daughter’s medical situation and his inability to relocate.

In March 2011, Complainant applied for a Supervisory Federal Air Marshall position under
Vacancy Announcement FAM-11-333029. The selection process included multiple steps.
First, a contract firm reviews all online applications to determine which candidates met the
basic qualifications and issues a list of the top 40 candidates. Next, the list of candidates is
sent to the Supervisory Air Marshall-in-Charge of the field office of the vacancy announcement
and to a ratings panel at Headquarters. The Headquarters rating panel members should not
know the individuals they are rating and panel members were expected to recuse themselves
0120131561

2
from rating candidates that they may know. The panels’ scores were combined for a final
score. The Supervisory Air Marshall-in-Charge is then given the list of candidates and scores
and ranks his top five or so choices. A selection panel at Headquarters then receives the
applications of the referred candidates and the Supervisory Air Marshall-in-Charge
recommendations for a selection. The selection panel does not receive the prior ratings scores.

Complainant’s application packet was initially rated 93 out of a possible 100 by the review
panel and SAC recommended him as his second choice for promotion. The selection panel
made three selections, including SAC’s first choice. On June 11, 2011, Complainant learned
that he was not selected.

In August 2011, a new rating panel convened to review candidates’ applications for
promotional opportunities. Membership on the rating panel changes year to year. In October
2011, Complainant learned that his rating score was lowered to 76 out of 100, which was the
lowest rating he had ever received.

On September 2, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of disability (relationship with individual with a
disability) and age (47) when:

1. On June 1, 2011, he was not promoted to a J-Band Supervisory Federal Air
Marshal position.

On October 26, 2011, Complainant amended his complaint to allege that he was discriminated
against on the bases of disability (relationship with individual with a disability), age (47), and
in reprisal for prior protected EEO activity when:

2. On or about October 2011, he received a low job rating score in spite of his
significant accomplishments.1

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a FAD. In accordance with Complainant's request, the
Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b) on February 8, 2013.

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim (1), the Chairperson of the
selection panel (C1), stated that the panel sought the best qualified and suited applicants based
on their education, experience, and leadership abilities. Complainant alleged that his rating

1 Additionally, Complainant claimed that he was discriminated against because of his parental
status (special needs child). However, parental status is not a basis of discrimination covered
under the Commission’s regulations and will not be addressed in this decision.
0120131561

3
score and his referral as the number two candidate were disregarded by the selection panel
because extra consideration was given to applicants who were willing to relocate. The Agency
determined that the record showed that three applicants with scores ranging from 73 to 93 were
selected; however, the rating scores were never forwarded to the selection panel. In addition,
the C1 noted that the Supervisory Air Marshall-in-Charge’s recommendations were one of
several factors considered and that the selection panel often selected candidates who were not
recommended. Further, as to Complainant’s claim that extra consideration was given to
employees who were willing to relocate, the record revealed that the vacancy announcement
did not require selectees to relocate to receive a promotion and selection panel members were
not aware of any of the applicants’ ability or willingness to relocate.

Next, as to his October 2011 lowered promotion rating, the Director of the Business
Management Office (Director) confirmed that the rating panel changed year to year and that a
subsequent rating panel would not be aware of an applicant’s prior rating score. The Agency
noted that 14 out of 53 applicants, including Complainant, received reduced rating scores from
the 2011 ratings panel.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant was not discriminated
or retaliated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency erred in its FAD when it found that he failed
to show by preponderant evidence that management discriminated against him. Complainant
alleges that, due to his daughter’s health condition, he cannot accept a transfer out of the
Boston area and that Agency officials were aware of this. Complainant argues that he was
more qualified than the selectees and that he was at a severe disadvantage for not being willing
to relocate. Further, as to his lowered job rating, Complainant contends that with the
exception of 2011, he had a history of outstanding scores and the decrease in his score was
retaliatory. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially 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. Furnco Constr. Corp. 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. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
0120131561

4
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. As to his non-selection, SAC confirmed that he recommended six
candidates to the selection panel, but the selection panel only chose his top recommendation.
ROI, Ex. F-3, at 2. C1 affirmed that the selection panel considered the supervisory
recommendations, the candidates’ length of experience in their positions, the types of different
assignments they completed, any prior law enforcement/security-related experience,
educational background, totality of supervisory duties or experience, and any demonstrated
positive leadership qualities. ROI, Ex. F-5, at 3. C1 detailed the extensive experience and
skills of the three selectees including Selectee 1’s top rating by SAC and all three selectees’
broad law enforcement and supervisory experience. Id

. at 3-4. A second selectee was already
serving as a Supervisory Federal Air Marshall and was laterally reassigned. ROI, Ex. F-6, at
3. Selectee 3 previously oversaw the management control objective plan and the management
assessment program. ROI, Ex. F-7, at 4-5. The panel members acknowledged that
Complainant was SAC’s second choice; however, they affirmed that the selection panel was
not bound by the recommendations and the selectees were better suited for the Agency’s needs.
ROI, Ex. F-6, at 3; ROI, Ex. F-7, at 3.
With regard to his lowered rating on a subsequent promotional opportunity, two rating
panelists affirmed that they based their ratings strictly on each applicant’s responses on their
applications regarding their knowledge, skills, and abilities. ROI, Ex. F-9, at 2; ROI, Ex. F-
10, at 2. The panel members noted that the only information they received about the
applicants was the information contained on their applications. ROI, Ex. F-10, at 2. The
Director noted that the rating panel members are trained, change from year to year, and would
not know the rating of an applicant from the previous year. ROI, Ex. F-4, at 3, 7.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As to his non-selection claim, the
Commission notes that Complainant may establish pretext by a showing that his qualifications
are observably superior to those of the selectee. Bauer v. Bailar

, 647 F.2d 1037, 1048 (10th
Cir. 1981). This is simply one method and is not the only way Complainant may establish
pretext as to his non-selection claim.
Beyond Complainant's bare assertions and subjective beliefs, the Commission finds that there
is no persuasive evidence in the record that Complainant’s protected classes played a role in
any of the Agency’s actions. As Complainant chose not to request a hearing, the Commission
does not have the benefit of an Administrative Judge's credibility determinations after a
hearing. Therefore, the Commission can only evaluate the facts based on the weight of the
evidence presented. At all times, the ultimate burden remains with Complainant to
0120131561

5
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory and retaliatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that he was subjected to discrimination or reprisal as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the FAD because the preponderance of the evidence of record does not establish that
discrimination occurred.

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
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).
0120131561

6
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:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 18, 2014