U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cliff G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021001219 Hearing No. 480-2020-00249X Agency No. HS-TSA-01641-2019 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 2, 2020, 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 finding no discrimination. BACKGROUND Complainant, an applicant for a Transportation Security Officer (TSO) position at the Los Angeles International Airport (LAX), in Los Angeles, California, filed a formal complaint alleging that he was subjected to discrimination based on race (Hawaiian, Chinese, Caucasian), color (medium-fair brown), sex (male), age (over 40), and in reprisal for prior EEO activity when on May 5, 2019, management did not select him for a TSO position under Vacancy Number LAX-F19-F001. 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. 2021001219 2 After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The AJ informed the parties of her intent to issue a decision without a hearing. Complainant did not respond to the AJ’s notice. Subsequently, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. In her notice of intent to issue a decision without a hearing, the AJ stated that: I propose to issue summary judgment in this case on the grounds that, taking the facts as presented in the Report of Investigation (ROI) and viewing the evidence in the light most favorable to Complaint, he has failed to demonstrate that his race, color, sex, age, and/or EEO activity were cause for the alleged discrimination. The record is devoid of evidence demonstrating that similarly situated employees outside of his protected class were treated more favorably, that the Responsible Management Officials were aware of Complainant’s prior EEO activity or that the Agency’s articulated legitimate, nondiscriminatory reasons for the alleged discrimination are unworthy of credence. Thus, the evidence does not support a prima facie case of disparate treatment or reprisal. It also does not demonstrate a causal nexus between Complainant’s EEO activity and the adverse employment action. According to A1, the Director of Recruitment and Field Hiring Operations, at the Agency’s Headquarters in Arlington, Virginia, Complainant’s application was initially stopped on May 5, 2019, because of his incorrect responses to various application questions. Subsequently, A1 had those responses corrected and Complainant’s debarment status was removed. A1 stated that once Complainant’s application was corrected, his status was changed to “active,” and he was invited to take the Computer Based Test, which he did on July 8, 2019. Thereafter, a reference check, regarding prior TSA employment, was conducted once Complainant was ready to be invited to attend the Airport Assessment. According to A1, all former employees are subject to a reference check with their prior duty station to determine their suitability to be rehired. On September 24, 2019, A2, the Administrative Officer at LAX, provided a response on Complainant’s eligibility for rehire. The reference check identified prior performance issues that resulted in Complainant’s termination from the Agency due to failure to follow instructions. Complainant was declined further consideration and never completed the required interview, drug test, medical exam, and pre-hire background check. The AJ noted that the record indicated that there were three female applicants who the computer application system debarred from consideration in May 2019. Furthermore, the AJ noted that there were 48 applicants who were, like Complainant, declined from further consideration based on an unfavorable reference check by A2. 2021001219 3 The 48 applicants who were declined from further consideration were of various races that differed from Complainant’s race, were both male and female, and were, mostly, younger than Complainant. ANALYSIS AND FINDINGS 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 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. 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.2 CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 2 When a party moves for summary judgment, the non-moving party’s opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. Fernandes v. USPS, EEOC Appeal No. 0120113904 (Jul. 25, 2013) (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)). 2021001219 4 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). 2021001219 5 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 9, 2021 Date
