U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anya V.,1 Complainant, v. David Pekoske, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019005793 Agency No. HS-TSA-01489-2018 DECISION On October 4, 2019, 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 May 9, 2018, final decision concerning her 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 decision. ISSUE PRESENTED Whether Complainant has proven, by a preponderance of the evidence, that the agency subjected her to discrimination based on her sex, age, or in reprisal for her prior protected EEO activity, when it terminated her employment as a Transportation Security Officer. 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. 2019005793 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency’s Luis Munoz Marin International Airport facility in San Juan, Puerto Rico. On July 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (49), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. On April 6, 2018, management issued Complainant a Notice of Proposed Removal. 2. On May 9, 2018, management issued a decision terminating the Complainant from her position as a Transportation Security Officer (TSO). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned reviewed the case and issued a decision without a hearing pursuant to 29 C.F.R. § 1614.109(g). 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”). The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency's final action shall be based on a de novo review...”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge's 2019005793 3 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case 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 at n.13; Furnco Constr. 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 Tex. Dep't of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor. We further note that the AJ offered Complainant an opportunity to comment/respond to the AJ’s decision. Complainant failed to comment or respond to the AJ. The Agency’s record showed that Complainant claimed that other employees engaged in similar conduct and were not sanctioned. However, a review of the record does not show that Complainant provided any evidence of discrimination based on sex, age and/or reprisal. Nor, did Complainant at any time explain when and how she provided evidence of sex, age or reprisal that demonstrated a basis of discrimination. After the AJ’s comment period expired on July 9, 2019, the AJ determined that Complainant’s claim was meritless and “should be decided against her without a hearing.” The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. We find that Complainant has failed to establish a prima facie case of discrimination in that she failed to present evidence that similarly situated employees with her performance deficiencies were treated more favorably or otherwise present evidence sufficient to demonstrate an inference of discrimination. Even assuming that a prima facie case was presented, the Agency articulated legitimate non-discriminatory reasons for the termination that were not proven to be pretextual. In this case, the Agency asserts that Complainant lacked candor on instances of negligent performance of duty relating to the use of stickers in the Agency’s terminals. 2019005793 4 In response, it appears that Complainant was less than candid, accurate or complete in her implementation of security entries while on duty. The Agency further explained that the charges were found to be substantiated, and that upon consideration of the relevant evidence, removal was consistent with the penalty imposed on similarly situated employees for the same or similar offenses. We find that Complainant failed to demonstrate that her protected categories of sex, age and reprisal were, in any respect, factors in this case. Complainant simply alleged that they were considered but did not otherwise demonstrate how her protected categories were factors in her claims. We further find that Complainant has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to her claims of disparate treatment and reprisal. 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 Final Decision. FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 2, 2021 Date
