Crysta T.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Aug 19, 2016

0120142976 (E.E.O.C. Aug. 19, 2016)

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

Crysta T.,1
Complainant,

v.

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

Appeal No. 0120142976

Hearing No. 541-2013-00112X

Agency No. HS-TSA-22911-2012

DECISION

On July 23, 2014, Complainant filed an appeal from the Agency’s June 16, 2014, final
decision concerning her equal employment opportunity (EEO) complaint alleging 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. and 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 was an applicant for
employment with the Agency. The Agency posted Vacancy Announcement DEN-F09-P001
for the position of Transportation Security Officer (TSO) from June 12, to June 19, 2012. The
TSO positions were located at the Denver International Airport in Denver, Colorado.

Complainant applied for a TSO position. On July 25, 2012, the Agency interviewed
Complainant and the other applicants at a hotel in Colorado. The interviewers rated applicants
individually and then discussed their scores and arrived at a consensus rating on the applicants.
Complainant was interviewed by a TSO and an Expert Security Training Instructor (ESTI).

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.
0120142976

2
After her interview, a Secretary informed Complainant that she did not pass the interview and
would not advance to the next phase of the selection process.

On November 8, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to harassment on the bases of race (Caucasian),
national origin (Greek), and age (53) when:

On July 25, 2012, an interviewer asked Complainant questions about the origin of her
name; asked Complainant where she was from; asked Complainant her age; stated “we
are looking for bombs;” told Complainant that she failed the assessment; and exposed
Complainant’s test results to other people who were standing in the hallway of the hotel
where the interview took place.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the
AJ dismissed the hearing request as a sanction for failure to follow the AJ’s Orders. The AJ
remanded the complaint to the Agency, and 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 her to discrimination as alleged.

In its decision, the Agency noted the TSO stated Complainant did not pass the interview phase
of the selection process because she failed to attain a passing score on her interview. The
Agency noted the ETSI explained that the interview panel asked each candidate six questions
which covered Critical Thinking, Attention to Detail, Situational Awareness, Interpersonal
Skills, Command Presence, and Team Work, and that they also rated each candidate on oral
communication. The Agency stated the TSO further explained that for each question, they
rated the applicants from one to five, with five being the highest. The TSO added that an
applicant had to attain at least a three on each question in order to pass the interview and
continue in the selection process. The Agency noted that Complainant failed to score at least
three on two questions. The Agency noted the record contained the score sheets showing
Complainant scored two for Situational Awareness and Command Presence. The Agency
determined Complainant failed to prove that the Agency’s legitimate, nondiscriminatory reason
was a pretext for discrimination.

With regard to Complainant’s hostile work environment claim, the Agency noted the TSO and
the ETSI denied that they asked Complainant about the origin of her name; asked where she
was from; or asked her age. The Agency noted the Secretary provided support during the
interview process, and she denied that she asked Complainant about the origin of her name,
where she was from, or her age. The Agency noted the Secretary explained that she informed
Complainant that Complainant did not pass the interview. The Secretary explained that she
delivered the news to Complainant in accordance with a script issued by Human Resources and
that, while she was certain the hallway was empty, she added that there may have been people
0120142976

3
walking by who were not connected to the selection process. The Agency determined the
record is devoid of any evidence that Complainant suffered harassment.

On appeal, Complainant states she finds it hard to believe that she failed because of a
Situational Awareness score of 2 and a Command Presence score of 2. Complainant noted that
she previously successfully passed the same test in Alabama and was in shock that in Denver,
her test score was revealed in front of other people.

In response to Complainant’s appeal, the Agency notes even if, as she claims, Complainant
used the same responses in Denver as she gave in Birmingham, the TSO candidate interview is
not the equivalent of a multiple-choice test and there is no single, “correct” answer for each
question. The Agency also noted that there are up to five possible questions for each
competency, and the answer for one question may not be appropriate for the other questions.
Additionally, the Agency argues that Complainant’s claims fall well short of the conduct
required for an actionable hostile work environment claim. The Agency states that
Complainant may have disagreed with the manner in which the Agency chose to conduct the
interview process in this case, but that disagreement cannot constitute an actionable hostile
work environment claim.

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”).

At the outset, we note that on appeal Complainant does not challenge the definition of her
complaint. Additionally, we note that Complainant does not contest the AJ’s dismissal of her
hearing request.

With regard to her non-selection claim, the Agency articulated legitimate, nondiscriminatory
reasons for its actions. The record reveals that all consensus ratings must be 3 or higher for
the candidate to pass the structured interview. Because Complainant received a consensus
score of 2 for situational awareness and command presence, Complainant failed the interview
portion of the TSO assessment. Complainant failed to show that the Agency’s reasons were a
pretext for discrimination.

With regard to Complainant’s claim of harassment, we note that the TSO and the ESTI both
denied asking Complainant about the origin of her name, where she came from, or her age.
0120142976

4
Additionally, the Secretary who provided support during the interview process also denied
asking Complainant about the origin of her name, where she was from, or her age. Thus, we
find Complainant failed to establish that anyone involved in the interview process asked about
the origin of her name, where she came from, or her age. The record reveals that the
investigator did not ask the TSO, the ESTI, or the Secretary whether they told Complainant
that “we are looking for bombs,” thus, we find Complainant has shown that this statement was
made. The Secretary stated that she informed Complainant that Complainant did not pass the
interview. The Secretary explained that she delivered the news to Complainant in accordance
with a script issued by Human Resources and that, while she was certain the hallway was
empty, she added that there may have been people walking by who were not connected to the
selection process. In the present case, Complainant failed to show that the alleged actions
were sufficiently severe or pervasive to constitute actionable harassment. Moreover, we find
Complainant failed to establish that she was subjected to harassment based on her protected
status.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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
0120142976

5
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 (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

August 19, 2016
Date