U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carson G.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021001157 Hearing No. 480-2020-00248X Agency No. HS-TSA-01700-2019 DECISION On December 4, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a decision concerning an equal employment opportunity (EEO) complaint claiming 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. The Commission accepts the appeal. BACKGROUND Complainant was formerly employed as a Transportation Security Officer (TSO) at the Agency’s Los Angeles International Airport in California. In January 2014 he was removed for attendance problems. On May 16, 2019, Complainant applied online for a TSO position, Vacancy Announcement Number LAX-F19-F001. The next day he received an automated email notice informing him of his “debarment”. The noticed explained that Complainant’s application would not receive further consideration until the expiration of a three-year debarment period, beginning from the effective date of his separation. 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. 2021001157 2 Believing that the Agency’s actions were discriminatory, Complainant contacted an EEO counselor in late June 2019. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on July 11, 2019, Complainant filed a formal complaint based on race (Afro-Latino), color (light brown), and sex (male).2 On July 18, 2019, in response to Complainant’s inquiry, the Agency’s HR Access Help Desk (hereinafter “Help Desk”) explained that the debarment was the result of Complainant’s erroneous answer to an application question regarding previous employment. Further, Help Desk informed Complainant that his application had been corrected and his status updated to “awaiting placement in Airport Assessment”.3 While his application remained in this status, eleven applicants were selected for the position on August 18, 2019. Complainant learned of the selections on September 27, 2019, from his representative. On October 8, 2019, the Agency accepted Complainant’s request to amend his complaint. The claims, as framed by the Agency, alleged that Complainant was discriminated against when: 1. On or around May 16, 2019, he was not referred for the position of Transportation Security Officer under Vacancy Announcement Number LAX-F19-F001. 2. On or around September 27, 2019, he became aware that he was not selected for the aforementioned position. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On September 11, 2020, the AJ assigned to the case determined sua sponte that the formal complaint did not warrant a hearing and issued a “Notice of Proposed Summary Judgment,” giving the parties until September 26, 2020 to respond to the Notice. Only the Agency submitted a response, supporting summary judgment. Consequently, the AJ issued a decision without a hearing, on September 29, 2020, finding that Complainant did not prove that he was subjected to discrimination as alleged. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant, without submitting any contentions or brief, filed the instant appeal. 2 Complainant also alleged reprisal for prior protected EEO activity, but subsequently withdrew this basis. 3 Scheduling to Airport Assessment is based on the hiring needs of each airport. Following contact by an airport, an applicant would then need to pass a medical exam, drug testing, and a pre-hire background check in order to be placed on a certification list. 2021001157 3 ANALYSIS AND FINDINGS Standard of Review 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. (Nov. 9, 1999) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). Summary Judgment The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. Here, Complainant has failed to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. As noted above, Complainant did not file a response to the Agency’s motion for summary judgment. 2021001157 4 Our review of the evidence of record produced during the investigation reflects that it has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003) (AJ may issue a decision without a hearing only after determining that the record has been adequately developed). For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). With respect to debarring Complainant’s application (claim (1)), the record supports the Agency’s proffered reason that this action was an automated response to Complainant’s erroneous answer regarding his prior termination. As explained in the Help Desk’s July 18, 2019 email, Complainant should have answered “no” to the question regarding separation due to misconduct “on or after July 27, 2017), because Complainant’s removal occurred prior to that date. By answering “yes”, his application was automatically debarred. Further, the record reflects that the Help Desk made the necessary correction and placed Complainant’s application in a status pending Airport Assessment. Complainant has not shown that the Agency’s proffered explanation was pretext to mask discriminatory animus. Moreover, Complainant has not established any nexus between his race, color or sex and his temporary debarment. When asked why he believed the debarment was due to his protected bases, Complainant simply attested that he had been debarred although other applicants outside of his protected bases, who were less qualified, were not similarly debarred. Regarding Complainant not being selected for the vacancy (claim (2)), the Agency reasoned that Complainant’s application was still pending and that he has not yet been non-selected. In the Agency’s view, the issue is not yet ripe for adjudication. Complainant has not provided any notice that he was not selected nor that his application is no longer pending. Even if we were to view the selection of the eleven candidates in late August 2019, as the non-selection of Complainant, Complainant has not provided any evidence that the Agency’s decision was due to his race, color or sex. Instead, Complainant simply attested, repeatedly, that because he had over ten years of experience as a TSO, the candidates had to be less qualified. This assertion is insufficient to meet his burden of showing that he was not chosen for the vacancy for discriminatory reasons. 2021001157 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2021001157 6 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). 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 February 2, 2021 Date
