U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belkis D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency. Appeal No. 2020000738 Agency No. HS-TSA-01611-2018 DECISION On October 19, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 5, 2019 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. BACKGROUND On May 25, 2015, Complainant, a job applicant for the position of contractor Human Resources (HR) Assistant at the Agency’s Office of Human Capital (OHC) in Springfield, Virginia, filed a formal EEO complaint. Complainant claimed that the Agency unlawfully retaliated for engaging in protected EEO activity when, on April 2, 2018, Complainant’s offer of employment was rescinded based on the results of her background investigation. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on August 5, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no retaliation was established. The instant appeal followed. 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 2020000783 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 a complainant to prevail, he or she 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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, as here, 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). During the investigation into her complaint, Complainant asserted that she applied for the contractor HR Assistant position in June 2017, when she attended a job fair. She was considered for the subject position and communicated with the Agency’s contracted staffing firm, but there were multiple delays in filling the position. In January 2018, Complainant reapplied for the position. In March 2018, the staffing firm called Complainant and offered her the position. Several days later, the staffing firm emailed Complainant an offer letter contingent on the successful completion of a background investigation. Complainant stated that after she received the offer letter, she completed the required background paperwork and an OF-306 form. In the OF-306 form, Complainant disclosed that she was involved in Department of Health and Human Services (HHS) EEO investigation. Complainant alleged that she was eventually not hired as a result of this EEO complaint. The Lead Personnel Security Specialist (“Security Lead”) stated that he conducted Complainant’s security investigation. He noted in her OF-306 form, Complainant indicated she was involved in a “wrongful termination” action. He said that Complainant had been terminated by HHS, “which [was] concerning because it [was] recent. The Complainant was also unclear about why she was terminated.” 3 2020000783 The Security Lead also determined that Complainant had approximately $12,824 in delinquent debt, which was beyond the Agency’s standard acceptable limit of $7,500. Based on these factors, the Security Lead stated that he submitted his recommendation to find Complainant was unsuitable for the position in question. He said that the Supervisory Personnel Security Specialist concurred with his decision. The Supervisory Personnel Security Specialist confirmed that he concurred with the decision to find Complainant unsuitable to begin contract employment with the Agency based on the factors cited by the Security Lead which were uncovered during the pre-appointment investigation. The record contains a copy of the Security Office’s written determination, dated April 2, 2018. The determination indicated that based on the results of her preliminary background investigation as an applicant for a contractor position, Complainant was found unfit to begin contract employment with Agency due to a lack of “Financial Responsibility” and “Misconduct or Negligence in Employment”. With regard to the financial matter, the determination stated that Complainant’s delinquent debt “does not meet its current employment standards and is incompatible with this special level of trust and confidence.” With regard to her prior employment, the determination indicated that she had been fired from her employment with HHS in May 2017 for poor work performance. Here, we conclude that responsible management officials articulated legitimate, non- discriminatory reasons for determining Complainant was not suitable for employment as a contract HR Assistant. These officials explained that the decision was made after the pre- employment investigation showed that Complainant had been recently fired from her position with another federal agency, and because her amount of delinquent debt exceeded the Agency’s acceptable standard, particularly because the position in Human Resources required a “special level of trust and confidence.” It is undisputed that Complainant’s termination from her past employer was the subject of an ongoing EEO complaint filed against that employer, and that the Security officials at the Agency were generally aware of this complaint because Complainant revealed it in her security paperwork. However, the weight of the evidence does not establish that the Agency would not have made the same decision to find Complainant unsuitable for the position in question even if she had not filed an EEO complaint against HHS, her former employer. Complainant has not proven that the Agency’s proffered reasons for not hiring her - that she was fired from her last job and her delinquent debt significantly exceeded the Agency’s acceptable limit - were a pretext designed to mask unlawful retaliatory animus. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 4 2020000783 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 5 2020000783 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 March 29, 2021 Date
