Lawrence L.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 11, 20192019000388 (E.E.O.C. Sep. 11, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lawrence L.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019000388 Agency No. HS-TSA-00621-2013 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 20, 2018 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Transportation Security Officer, SV-1802, E-Band at the Los Angeles International Airport in Los Angeles, California. On February 26, 2013, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on his race (Asian/Pacific Islander), sex (male), and color (medium dark) when, on December 9, 2012, Complainant’s employment was terminated when he failed a proficiency test three times. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity 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. 2019000388 2 Commission Administrative Judge (AJ). Complainant initially requested a hearing but subsequently withdrew his request. On August 20, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for terminating Complainant’s employment. The Acting Deputy Federal Security Director (“ADFSD”) testified that he was the deciding official who issued Complainant the Notice of Proposed Non- Disciplinary Removal on October 5, 2012. The ADFSD stated that he issued the Proposed Notice of Removal because Complainant failed to pass the OSARP2 Mastery Assessment (“OMA”), a proficiency assessment, after three attempts. The ADSFD further stated that Complainant did not provide any “extenuating circumstances” during his oral and written replies to the Proposed Notice of Removal that the ADSFD felt justified a conversion to a single function officer position in lieu of removal from the Agency. 2 OSARP is an abbreviation for On-Screen Alarm Resolution Protocol. 2019000388 3 The ADFSD explained that the Agency’s PASS3 2012 Handbook provides a removal process for employees to fail the OMA proficiency test three times. The ADSFD explained that he did not give Complainant an opportunity to take the test for a fourth time because he determined that all three tests administered met the national established OMA guidelines, and the remediation provided to Complainant met the requirements of the PASS 2012 handbook. However, the ADFSD clarified that other employees were given a fourth opportunity to take an SOPA assessment after failing this test three times because it was determined by Agency headquarters that remediation for all SOPA tests conducted at the Los Angeles Airport did not meet the minimum 2012 PASS Handbook requirements. In contrast, the ADFSD stated that Complainant failed the OMA assessment three times and was provided remediation consisting of SOP Review Q&A which met the minimum requirements set forth by the 2012 PASS Handbook. A copy of the Notice of Proposed Non-Disciplinary Removal dated October 1, 2012, states that Complainant failed the OMA proficiency test on August 1, 2, and 10, 2012. The Notice further states that Complainant was provided the required two hours of remediation after taking the OMA test on August 1 and 2, 2012, Complainant’s supervisor granted him one additional hour to study the SOP after both OMA testing failures, and Complainant was allowed to choose his own test dates. The Notice also states that: TSA Performance Accountability and Standards System 2012 User’s Guidance for Inability to Qualify on Technical Proficiency Assessment states that if an employee does not qualify for a PASS Technical Proficiency assessment after three (3) attempts, the employee is subject to removal procedures. The Aviation and Transportation Security Act (“ATSA”) requires that TSA conduct an annual proficiency review of each TSO. This proficiency review is accomplished through a recertification process. Federal law provides that a TSO who does not demonstrate success on the annual proficiency review “may not continue to be employed” as a TSO. 49 U.S.C. § 44935(f)(5). Federal law does not allow your continued employment as a TSO upon failure to meet the annual proficiency review requirements. A copy of the Notice of Decision on Proposed Non-Disciplinary Removal dated December 4, 2012, states that Complainant’s employment was terminated for failure to meet annual proficiency review requirements. The Notice further states that Complainant choose his test dates after completing remediation and the Notice explains that Complainant was adequately remediated between each examination. 3 PASS is abbreviated for Performance Accountability & Standards System. 2019000388 4 The record includes a copy of the Agency’s PASS 2012 User’s Guidance for Inability to Qualify on Technical Proficiency Assessment which states that “if an employee does not qualify for a PASS technical proficiency assessment after three attempts, the employee is subject to removal procedures.” After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, and color. We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2019000388 5 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 September 11, 2019 Date Copy with citationCopy as parenthetical citation