U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corrina M.,1 Complainant, v. David Pekoske, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000330 Hearing No. 480-2018-00495X Agency No. HS-TSA-01970-2017 DECISION On October 17, 2020, 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 September 15, 2020, final order 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 At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO) at the Agency’s Los Angeles International Airport (LAX) facility in Los Angeles, California. On September 24, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (brown) when, on or about June 5, 2017, management denied her promotion to the position of Master Transportation Security Training Instructor (Job Announcement # LAX 17-239576). 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. 2021000330 2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Complainant applied and was selected for the Master Transportation Security Training Instructor (Instructor) position at issue. She attested that she understood that she was required to travel to Georgia for the Instructor training course for 2 weeks, but she was denied the opportunity to travel by another Supervisory Program Analyst (SPA) because she had an outstanding payment on her Government travel card. Complainant acknowledged that she was late on her payments on her Government travel card. She attested that, on June 5, 2017, SPA told her that, because her travel card was not completely paid off, she could not go to the Instructor training course. Complainant attested that she told SPA that she was going to pay off her travel card on June 12, 2017, but SPA told her that her selection as Instructor was off the table. Complainant attested that she offered to pay her own way to the Instructor training course, but SPA rejected this. Complainant attested that, subsequently, she received a 3-day suspension because of the travel card issue and was removed from the deployment team where she had served for 2 years. Complainant alleged that her race, color, and sex were a factor because she was more qualified than the selectees who were not of her race, color, or sex, and one selectee (Selectee1) was allowed to travel to the Instructor training course without using a Government travel card and was allowed to be promoted to Instructor. Complainant also asserted that she had not seen any Agency policy or vacancy announcement for the Instructor position requiring the use of the Government travel card or indicating employees are not allowed to pay out of pocket to attend the Instructor training course. The selecting official (Selecting Official) attested that she tentatively selected Complainant for the Instructor position and Complainant accepted the tentative offer. She explained that the staff selected for Instructor positions were required to attend Instructor training and receive a certificate of completion before a final job offer would be made. She attested that the final job offer for the position is not made until after the selectee has completed the Instructor training. Selecting Official attested that Complainant had a delinquency on her Government travel card that was unresolved at the time of the offer and this prevented her from booking her travel to the training course. She explained that employees are required to use a Government travel card to travel for official government business and to pay the balance on their Government travel cards in a timely fashion. SPA attested that the job offer to Complainant was rescinded because Complainant had a delinquency on her Government travel card and, as a result, she was unable to make any purchases or book her travel to the training. She attested the offer was also rescinded because Complainant received a proposed 14-day suspension, which was mitigated to a 3-day suspension, for failure to report an arrest in 2015 and for the delinquency on her Government travel card account. 2021000330 3 She explained that Government travel card balances must be paid in a timely fashion to maintain a Government travel card to use for Government travel and employees who receive proposed or issued discipline are ineligible for promotion at LAX for 12 months. The Assistant Federal Security Director for Mission Support (Director) attested that Complainant received a conditional job offer for the Instructor position, which required her to travel to and attend the Agency’s certification training. He attested that the primary reason the offer was rescinded was Complainant’s pending disciplinary action. He attested that, on May 10, 2017, management was notified by the Office of Personnel Security that Complainant had been arrested on November 8, 2015 and had she failed to report the arrest. He also attested that that Government travel card balances were required to be paid in full by the due date and Complainant’s Government travel card had been suspended due to delinquency. He attested that Complainant received discipline, a 3-day suspension, for the Government travel card delinquency and failure to report the arrest. He explained that discipline issued to or pending for an employee makes them ineligible for promotion for 12 months. Complainant attested that, on November 8, 2015, she was held in custody for approximately 24 hours but was not charged with any crime. She alleged that she did not report this incident to the Agency because she was not aware that she was obligated to do so. Regarding Complainant’s allegation that Selectee1 was allowed to use a personal credit card for travel to the training course, Director attested that Selectee1 made a mistake when she used her personal credit card to purchase her flight to travel to the training course, self-reported her error to the Agency’s Finance Department, and received approval from the Agency’s Headquarters Financial System Branch to move forward using that booking. A Notice of Proposed 14 Calendar Day Suspension, dated June 13, 2017, indicates that the Lead Transportation Security Officer proposed Complainant be suspended from duty without pay for 14 calendar days to promote the efficiency of the Federal service. It indicates Complainant was charged with (1) failure to timely honor debts, with 4 specifications involving Complainant’s failure to pay the balance on her Government travel card when it was due; and (2) failure to timely report arrest, with one specification on November 8, 2015. The Notice indicates that Complainant’s actions were in violation of TSA Management Directive (MD) No. 1100.73-5, Employee Responsibilities and Code of Conduct. A Notice of Decision on Proposed 14 Calendar Day Suspension, dated July 5, 2017, provides that the proposed 14-day suspension was mitigated to 3 days. It provides that Complainant did not dispute the charges and specifications and took full responsibility. 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). Complainant timely requested a hearing. 2021000330 4 Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 26, 2018, motion for a decision without a hearing and issued a decision without a hearing on August 14, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that the record is sufficient to establish a prima facie case of discrimination when her conditional job offer was rescinded, and she was not allowed to complete her training for the position. She also argues that the Agency’s explanations for its actions were a pretext for that discrimination. In response, the Agency argues that the AJ properly issued a decision by summary judgment finding that Complainant failed to prove discrimination. In so doing, the Agency argues that Complainant failed to establish that its reasons for rescinding the job offer were pretext for discrimination and that the Agency has broad discretion to make adverse personnel decisions when legitimate questions are raised about an individual’s character or fitness. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Complainant was given ample notice of the Agency's motion for a decision without a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity to respond to such a statement, and the chance to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. 2021000330 5 Complainant alleged the Agency treated her disparately when the Agency rescinded its offer of the Instructor position at issue. 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, 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 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). Here, even if we assume that Complainant established a prima facie case, her claim ultimately fails, as we find that the Agency’s responsible management officials (RMOs) articulated legitimate, non-discriminatory reasons for the disputed actions. The RMOs explained that Complainant’s job offer was tentative and conditional upon her successfully completing the Agency’s Instructor training course. They explained that, because Complainant was delinquent in paying her Government travel card balance, her charging privileges had been suspended and she was unable to make her travel arrangements to training on her Government travel card, as required by the Agency’s policy. They explained that, additionally, it was discovered that Complainant had failed to report her arrest on November 8, 2015. Because of the delinquency of her Government travel card and her failure to report her arrest, Complainant was issued a 3-day suspension. The RMOs explained that employees who are issued discipline or proposed discipline were ineligible for promotion for 12 months. The RMOs explained that, for these reasons, Complainant’s job offer was rescinded. We find these reasons to be reasonable and legitimate. Although Complainant alleged the Agency acted because of her race, color, and/or sex, we find she 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. 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. 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 2021000330 6 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). 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. 2021000330 7 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 3, 2021 Date
