Leon B.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Jan 8, 2016

0120142514 (E.E.O.C. Jan. 8, 2016)

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

Leon B.,1
Complainant,

v.

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

Appeal No. 0120142514

Agency No. HS-TSA-01069-2013

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
April 3, 2014 final Agency decision (FAD) 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., 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 at the Agency’s Dallas Field Office in Coppell, Texas. In September 2011,
Complainant obtained a medical waiver for the running portion of the Quarterly Fitness
Assessment due to severe aches and pains Complainant experiences in his knee after running.
This waiver allows him to perform an alternate exercise for that portion of the test.
Complainant applied for a Federal Air Marshal Service Training Instructor position advertised
by the Agency on December 3, 2012. Complainant and eight other candidates were referred
for interviews by a three-person panel. The interview panel rated the candidates on eight

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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different categories, including computer skills, firearms skills, fitness and defensive measure
skills, team work and independent work ethic, attention to detail and organizational skills,
communication skills, training concepts, the content and structure of their resume, and
supervisor recommendations. After scoring the candidates, the panel submitted the final
ratings to the Selecting Official (SO). Based on the interview panel’s ratings and
recommendations, SO chose Selectee 1 and Selectee 2. Complainant was not selected for the
position.

On May 9, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of race (African-American), disability, and age (49) when on March
13, 2013, Complainant was notified that he was not selected for Federal Air Marshall Service
Training Instructor Position.

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 Equal Employment
Opportunity Commission 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).

In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie
case of discrimination on the alleged bases and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the interview panel rated the candidates
on the eight aforementioned categories. Complainant's strongest categories were team work
and independent work ethic, communication skills, and training concepts. Complainant was
above average in computer skills, firearms, fitness, and defensive measure skills. Complainant
was rated the lowest in the categories of attention to detail and organizational skills. While
Complainant had a good instructor background, his experience was not recent. By contrast,
Selectee 1 had both previous and current instructor experience, was very articulate in his
interview, had an outstanding recommendation, and had well-structured content in his resume.
The next two candidates had the equivalent strengths in their resumes, training concepts, and
communication skills. One of the candidates scored higher in organization skills and the other
scored higher in firearms. The panelists met and compared the tied candidates’ packets to
determine who would be number two and who would be number three on the recommendation
list. Complainant was not as competitive as the top three candidates and was ranked fourth.
The panel forwarded their recommendations to SO, and SO selected the highest-ranked
candidates (Selectee 1 and Selectee 2).

In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued that his medical waiver precluded him from being selected for this
position, that SO told him he was not selected because of his medical waiver, that the
unwritten “Atlantic City” policy dictated that his medical waiver precluded him from becoming
an instructor, and that “"everyone in the office knows that Blacks have been discriminated
against” regarding selections for key positions.

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SO denied that Complainant’s medical waiver precluded his selection and stated that he told
Complainant that his medical waiver had “no bearing on the decision.” Additionally, the
Assistant Special Agent-in-Charge (ASAC) affirmed that he told Complainant that his medical
waiver was not a factor in his non-selection and that he was not familiar with anything called
the “Atlantic City Policy.” ASAC noted that he believed Complainant was referring to the
announcement from the Atlantic City Training Headquarters, which explained the training
criteria and stated that a student must be able to participate in intensive training. The
announcement did not say anything about medical waivers. ASAC further stated that if a
student could participate in the training, then he or she could be selected for the Training
Instructor Position, regardless of whether he or she had a medical waiver.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretext for unlawful discrimination. As a result, the Agency found that
Complainant had not been subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant challenges the management’s assertion that his medical waiver played
no role in his non-selection. Complainant points to a notation on the application evaluation in
which the panel acknowledged his physical fitness waiver. Further, Complainant argues that
Agency officials were not truthful during the investigation. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that, assuming arguendo that Complainant established
a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the interview panel interviewed candidates and rated them
on eight categories. ROI, at 194-95. Panel members confirmed that Complainant performed
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well during his interview, but he scored lower in the categories of attention to detail and
organizational skills. Id. at 195. For example, the interview panel noted that Complainant’s
application had numerous structural and grammatical errors and that Complainant did not
demonstrate recognition of the importance of detail in written documents. Id. at 266. By
contrast, the panel determined that the top three candidates were stronger candidates with
better organizational skills, communication skills, training concepts, and overall applications.
Id. at 196. As a result, the panel ranked Complainant fourth out of the nine candidates. Id. at
195. The panel forwarded their rankings and recommendations to SO, and SO stated that he
selected the highest scoring candidates. Id. at 194.

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. One way Complainant can establish
pretext is by 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.

In attempting to show that the Agency’s reasons for its actions were pretextual, Complainant
points to a notation on his application evaluation in which the panel indicated that he had active
physical fitness waiver. Complainant believes that that this shows that Agency’s officials
considered his waiver during the selection process. Panel members confirmed that
Complainant’s medical waiver was mentioned in relation to requirements for instructor
courses; however, they were all informed that the waiver would not be a consideration and
options regarding the waiver would be evaluated after a selection was made. ROI, at 199,
212. Each member maintained that Complainant’s medical waiver was not a factor in their
rankings, and SO affirmed that it played no role in his selection decision. Id. at 190, 193

The Commission finds that Complainant failed to show that his qualifications for the position
were plainly superior to those of the selectees. In this case, the selectees had attributes that
justified their selection, and the selection officials involved all affirmed that they believed that
the selectees were better equipped to meet the Agency's needs. In the absence of evidence of
unlawful discrimination, the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

As Complainant chose to not 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. The
Commission finds that the record lacks evidence that the Agency's selection or the selection
process was tainted by discriminatory animus. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that discriminatory animus was a factor in its actions.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that he was subjected to discrimination as alleged
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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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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).

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”
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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

January 8, 2016
Date