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

Equal Employment Opportunity Commission

Mar 5, 2018

0120160125 (E.E.O.C. Mar. 5, 2018)

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

Ivan V.,1
Complainant,

v.

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

Appeal No. 0120160125

Hearing No. 502-2015-00340X

Agency No. HS-TSA-01330-2013

DECISION

On September 23, 2015, 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
August 25, 2015, final decision 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Expert Behavior
Detection Officer, G-band, at Boston Logan International Airport in Boston, Massachusetts.

On July 22, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Arab), national origin (Morocco), religion

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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(Islam), and age (46) when on March 29, 2013, he was not selected for a Transportation Security
Manager position, advertised under Vacancy Announcement Number (VAN) BOS-13-571809.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew
his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The record reflects that the Agency issued a Certificate of Eligibles for a vacant
Transportation Manager Behavior Detection Officer position that was comprised of 23
candidates, including Complainant. The Agency stated that the interview panel was composed
of two Caucasian American Catholics, one born in 1979 and the other born in 1965, and an
African-American Catholic born in 1948. According to the Agency, the interview panel issued a
score from one to five for each candidate’s response to questions concerning team building,
operations management and oral communications. The Agency stated that Complainant and the
selectee (African-American, religion unknown, age unspecified) received the highest score of
fourteen based on their interviews. On March 29, 2013, the Assistant Federal Security Director
for Screening (Caucasian, American, Catholic, born in 1960) chose the selectee.

The Agency stated that the selecting official chose the selectee because he possessed additional
competencies that Complainant did not, specifically conflict management and command
presence. In contrast to Complainant’s resume which did not indicate any conflict management
experience, the selectee had conflict management experience through his part-time position as a
manager in a group home for troubled youth. As for the factor of command presence, the
selecting official stated that he witnessed the selectee handle a situation concerning allegations of
racial profiling in the Behavior Detection Officer unit, in which he addressed the allegations and
the mission of the program with the workforce. The selecting official noted that Complainant is
a good Behavior Detection Officer, but he never observed Complainant take charge of a situation
as the selectee did.

An additional matter that factored into the selecting official’s decision related to an incident
involving Complainant after he learned that he had not been selected for a temporary detail.
According to the selecting official, Complainant created a scene during the briefing with several
of his teammates in the room. The selecting official asserted that Complainant lost his
composure, was unprofessional, and had to be escorted out of the room in order to calm down.
The Agency determined that it articulated a legitimate, nondiscriminatory reason for not
selecting Complainant.

The Agency noted that Complainant argued that he had more experience than the selectee, had
more time on the Behavior Detection Officer team than the selectee, and had mentored, trained
and coached more officers than the selectee ever would.
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The Agency determined that Complainant failed to produce evidence to show that his
qualifications were plainly superior to the selectee’s credentials, or that management’s reason for
not selecting him was a pretext for discrimination. The Agency noted that Complainant did not
deny that the outburst at issue occurred but rather he maintained that it occurred during a break
instead of during a briefing.

CONTENTIONS ON APPEAL

On appeal, Complainant states that he has been with the agency for thirteen years and with the
Behavior Detection program for eleven years, since it was in a pilot phase. Complainant states
that he has been active in the program’s evolution on a local, national, and international level.
According to Complainant, he was assigned as a team lead to oversee different operations at
different airports. Complainant states that he was in charge of operations that were comprised of
10-50 officers and that he received multiple letters of commendation. Complainant asserts that
he also held a Behavior Detection detail as a Screening Manager for a few months. Additionally,
Complainant states that he has consistently received the highest possible performance rating.

Complainant argues that the selectee has less experience than himself. Complainant states that
the selectee was the only candidate to receive a second interview and that interview was with the
selecting official. Complainant maintains that since he had the same interview score after the
first interview as the selectee, he also should have received a second interview. Complainant
claims that there is no Muslim, Arab, and over 40 year old individual holding a managerial
position in the Behavior Detection program. Complainant contends that the selecting official is
known for choosing individuals under the age of 40. According to Complainant, he met with the
selecting official after the selection decision but the selecting official failed to articulate a reason
for his choice.

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). 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). 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 prima facie inquiry may be dispensed with where the Agency 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).
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We shall assume arguendo that Complainant has set forth a prima facie case of discrimination
under each of the alleged bases. The Agency asserted that that the selecting official chose the
selectee because he possessed demonstrated skill in conflict management and command
presence. The Agency further stated that Complainant’s outburst after he learned that he had not
been selected for a detail demonstrated a lack of composure and professionalism and was a factor
in his nonselection. We find that the Agency has articulated legitimate, nondiscriminatory
reasons for Complainant’s nonselection.

Complainant attempts to establish that the Agency’s reasons are pretext by arguing that his
experience is superior to that of the selectee. According to Complainant, he has been a Behavior
Detection Officer since 2004, was assigned to be a trainer at other airports and was tasked to try
out new procedures in the Behavior Detection Officer program. Complainant points out that he
served nearly six months as an Acting Behavior Detection Officer Manager.

With respect to the selectee, Complainant states that he joined the Behavior Detection Officer
program as a F band Behavior Detection Officer in 2007 and was promoted to a G band in 2009.
Complainant asserts that the selectee was never an acting manager and he never worked at
headquarters. Upon review of the record, we find that Complainant has not submitted evidence
that his credentials were so observably superior to those of the selectee as to clearly establish that
discriminatory motivation must have been a factor in his nonselection. The selecting official
reasonably considered the selectee’s demonstrated performance in conflict management and
command presence. It was also reasonable for the selecting official to take into account
Complainant’s disproportionate reaction to learning he had not been selected to a detail. We find
that Complainant has failed to establish that the Agency’s reasons for his nonselection were
pretext intended to mask discriminatory motivation.

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
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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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

March 5, 2018
Date