Murray C., Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Feb 19, 2016

0120143091 (E.E.O.C. Feb. 19, 2016)

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

Murray C.,
Complainant,

v.

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

Appeal No. 0120143091

Hearing No. 480-2012-00508X

Agency No. HS-TSA-01675-2011

DECISION

Complainant filed an appeal from the Agency’s August 1, 2014 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. 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 order.

BACKGROUND

Complainant worked as a Transportation Security Officer (TSO) at Los Angeles International
Airport. On September 19, 2011, he filed an EEO complaint in which he alleged that Assistant
Federal Security Director for Screening (AD) discriminated against him on the bases of race
(African-American), color (Black), sex (male), national origin (American), and age (56) by
terminating him, effective June 15, 2011. At the conclusion of the ensuing investigation, the
Agency notified Complainant of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Although Complainant timely requested a
hearing, the AJ assigned to the case granted the Agency’s September 7, 2012, motion for
summary judgment over his objection and issued a decision on June 18, 2014, without holding a
1This 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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hearing. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

Complainant sustained an on-the-job injury on December 25, 2008, and was given a series of
temporary limited duty assignments from December 30, 2008 through January 28, 2011. From
that date until June 15, 2011, the date of his removal, Complainant was placed in leave-without-
pay status because work within his medical restrictions was no longer available. According to
the Workers’ Compensation Coordinator (WCC), Complainant had been cleared by his physician
to return to work on a full-time basis in February of 2011, but could only perform sedentary
work and consequently, was unable to perform the essential functions of a TSO. Based on input
from the WCC, and in accordance with a policy which mandated the removal of all TSOs who
had been on limited duty for more than one year, the Deputy AD proposed Complainant’s
removal in March of 2011, which the AD ultimately sustained. Investigative Report (IR) 62-63,
70-72, 77-78, 82-83, 99-104, 110, 118, 121, 138, 145, 154, 169.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decision to terminate an employee unless
there is evidence of a discriminatory motivation on the part of the officials responsible for
making that decision. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248,
259 (1981). Therefore, in order to warrant a hearing on his disparate treatment claim,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether, the AD was motivated by unlawful considerations of his race, color, sex, national
origin, or age in terminating him on June 15, 2011. See 29 C.F.R. § 1614.109(g); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

He can do so in circumstantial-evidence cases like this one by presenting documents or sworn
testimony showing that the reason articulated by the AD for firing him is pretextual, i.e., not the
real reason but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S.
502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can include discriminatory
statements or past personal treatment attributable to the AD, comparative or statistical data
revealing differences in treatment across racial, color, gender, national origin or age-related lines,
unequal application of Agency policy, deviations from standard procedures without explanation
or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F.
v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

In this case, Complainant provided no evidence of pretext at all. When asked by the investigator
whether the AD or the Deputy AD made any remarks about his race, color, sex, national origin,
or age, Complainant answered, “no.” IR 63. The laws the Commission enforces cannot prevent
the Agency from removing employees unless its decisions are rooted in a statutorily proscribed
motivation. And on this crucial issue, Complainant has not submitted any sworn statements from
other witnesses or documents that contradict the explanation provided by the AD or which call
the AD’s veracity into question. We therefore find, as did the AJ, that no genuine issue of
material fact exists with respect to the AD’s decision to terminate Complainant on June 15, 2011.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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” means the
national organization, and not the local office, facility or department in which you work. If you

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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

February 19, 2016
Date