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

Equal Employment Opportunity Commission

Feb 9, 2018

0120180499 (E.E.O.C. Feb. 9, 2018)

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

Don S.,1
Complainant,

v.

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

Appeal No. 0120180499
Hearing No. 480-2014-00517X
Agency No. HS-TSA-02269-2013

DECISION

On November 25, 2017, 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
October 16, 2017, final order concerning his 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation
Security Officer (LTSO) at the Los Angeles International Airport (LAX).

On December 1, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and color
(medium-dark brown) when:

On September 13, 2013, he was issued a Letter of Reprimand for using a cell phone
while on duty.

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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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 requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision without a hearing. The AJ adopted the Agency’s
statement of undisputed facts and issued a decision without a hearing finding no discrimination
on September 13, 2017.

In her decision, the AJ noted that Complainant had filed a Motion to Strike the Agency’s Motion
for Summary Judgment. The AJ noted the Agency filed its Agency’s Opposition to the Motion
to Strike. The AJ denied Complainant’s Motion to Strike. The AJ noted that no hearing date had
yet been set when the Agency’s Motion for Summary Judgment was filed, and Complainant was
not prejudiced in his ability to oppose the Agency’s Motion for Summary Judgment. The AJ
stated Complainant had the opportunity to respond to the Agency’s Motion, but did not do so.

Further, the AJ found the record demonstrated that Complainant admitted using a personal cell
phone in a restricted area while on duty, which is against Agency policy. The AJ found the
record is clear that the Agency was motivated by its policy against Transportation Security
Officers (TSO) using personal cell phones in restricted areas while on duty. The AJ determined
Complainant did not present any evidence that the Agency’s articulated reason for its actions was
pretext for discrimination.

The Agency subsequently issued a final decision on October 16, 2017. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

On appeal, Complainant argues that Complainant also argues that the Agency’s Motion for
Summary Judgment was untimely. Complainant also argues that even assuming the late
summary judgment motion was properly considered, the AJ should have at least allowed
Complainant to submit a response to the Agency’s motion for summary judgment. Complainant
states the AJ did not allow this. Complainant states that if he had been afforded the opportunity
to present his evidence obtained during discovery, the discovery would have presented many
issues which require an assessment of credibility.

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 (EEO MD-110), at Chap. 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
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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 address Complainant’s argument that the AJ should have dismissed the
Agency’s motion for summary judgment as untimely filed. We note that an AJ has broad
discretion in the conduct of a hearing, to include waiver of a time limit. See 29 C.F.R.
§1614.604(c). Here, even assuming that the Motion was untimely filed, we find no abuse of
discretion because no harm resulted to Complainant. The AJ noted Complainant could have
responded to the Agency’s motion for summary judgment, but did not do so. Considering
Complainant’s arguments against the substance of the motion in the instant appeal does not alter
our opinion that the AJ properly decided the case without a hearing.

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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

In the present case, the Agency articulated a legitimate, nondiscriminatory reason for its actions,
Complainant used his personal cell phone in a restricted area while on duty in violation of the
Agency’s policy. The record showed that at least four individuals outside of Complainant’s
protected classes were also issued Letters of Reprimand for using cell phones in restricted areas.

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We find that the record is adequately developed and there are
no disputes of material fact. Despite his contention on appeal, Complainant does not identify
any specific issues which would require an assessment of credibility. We find, as did the AJ, that
nothing in the evidence presented shows that the Agency’s actions were a pretext for
discrimination.

CONCLUSION

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

February 9, 2018
Date