0120171082
04-26-2018
Norris D.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Norris D.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120171082
Agency No. HS-HQ-24723-2015
DECISION
On January 9, 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 December 9, 2016, 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.
ISSUE PRESENTED
Whether the evidence of record established that Complainant was subjected to discrimination based on race/color (African-American/Black) when he was removed from his law enforcement position and reassigned to a non-law enforcement position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physical Security Specialist (Law Enforcement Security Officer), GS-0080-12, at the Agency's Department of Homeland Security facility in Miami, Florida.
On October 20, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and color (Black) when, on May 7, 2015, management removed him from his Law Enforcement Security Officer position and, in October 2015, reassigned him to a non-law enforcement position.
The Agency accepted the complaint and conducted an investigation.
During the investigation, Complainant stated that, on September 23, 2014, he took his quarterly weapon proficiency test, as required, with his Agency-issued weapon at the Medley, Florida training facility. It is undisputed that Complainant achieved a score of 165 on his first attempt and 175 on his second attempt, and failed to achieve the minimum score of 200 needed to qualify.
Complainant contends that his duty weapon was constantly jamming, causing weapon malfunctions. The pin for the pistol grip extension was also dislodging and causing the weapon to malfunction. Complainant states that he requested the Firearms Instructor (Caucasian Hispanic), conducting the qualifying test, repair his weapon so that he could take his "alibi" (misfires) shots. However, he said the Firearms Instructor refused to have the weapon repaired. Complainant states that he was told to work through the weapon malfunctions. Complainant contends that the failure to repair his weapon caused his inability to reach the required score of target hits.
Complainant states that there were two white female officers, who were qualifying at the same time. He claims that they were permitted to shoot their alibi rounds, even though they, too, had malfunctioning weapons issues. He states that the Firearms Instructor assisted both white women in getting their weapons in working order. He states that both female officers qualified after receiving this assistance.
Complainant further states that at the end of the two attempts to qualify with a malfunctioning weapon, he wanted to see his target in order to possibly dispute any missed points, challenge any rounds that may have not been correctly counted, and to determine the number of shots that were missed, but was not permitted to do so. Complainant states that white officers were shown their results, and, thus, he was not treated fairly.
Complainant states that he had never in his career scored that low a percentile. He said he had a history of qualifying in the eighty-percentile group every quarter every three months for 14 years.
On September 25, 2014, Complainant received eight hours of remedial training and retook the firearms qualification test conducted by a different tester (Hispanic), but failed again to achieve the required score of 200. According to the tester, Complainant insisted on taking his retest that day although he was advised that further remedial training was needed.
On September 29, 2014, due to his failure on the qualifying test, Complainant's authority to perform law enforcement duties was suspended and his authority to carry a firearm revoked. He was assigned administrative duties.
On May 7, 2015, Complainant received a proposal to remove him from his position based on his failure to qualify on his service firearm, a condition of his employment. However, the effective date of the removal was held in abeyance pending consideration of Complainant for a non-law enforcement position.
On October 20, 2015, Complainant was reassigned to the position of Physical Security Specialist (Electronic), GS-12, in Miami, a position where he was not required to carry a weapon.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed.
CONTENTIONS ON APPEAL
Complainant provided the same statement that he provided to the Agency during its investigation into his complaint.
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, at Chapter 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 of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
In order to prevail in a disparate treatment claim, 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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 burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community 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 Products. Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (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).
Here, responsible Agency officials articulated legitimate, non-discriminatory reasons for the decision to reassign Complainant. It is undisputed that Complainant failed his mandatory firearms qualification test, even after remedial training, and his reassignment to a non-law enforcement position was a direct result of that failure as carrying a firearm was a requirement of his law enforcement position.
In an effort to prove pretext, Complainant alleges that other officers taking the test were treated more favorably by the instructors conducting it. However, beyond his bare assertions, there is no specific or identified evidence that white officers were permitted to have weapons repaired or to take "alibi" shots during re-certification. Complainant chose not to request a hearing before an EEOC Administrative Judge, where he might have further developed the evidence of record, including the possibility of credibility determinations on witness testimony. Based on the current evidence of record, Complainant has failed to prove, by a preponderance of the evidence, that his race played any role in the decision to remove him from his law enforcement position.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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.
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
__4/26/18________________
Date
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.
2 As such, there is no need for us to address that Agency's alternative conclusion that the complaint should be dismissed for untimely EEO counselor contact.
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