U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilbert S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004388 Agency No. TSA-02194-2019 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 16, 2020, finding no discrimination concerning his 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On September 17, 2019, Complainant filed an EEO complaint alleging discrimination based on race/national origin (Asian American), color (olive tan), age (over 40), and in reprisal for prior EEO activity when on August 18, 2019, he learned that management excluded him from the interview process of the Federal Security Director (FSD), SV-0343-K Band, position advertised under Job Vacancy Announcement No. HS-SO-19-582518-ERD. 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. 2020004388 2 After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant was a retired Assistant Federal Security Director (AFSD), J Band, for Mission Support at the Jackson-Medgar Wiley International Airport (JAN) in Jackson, Mississippi. He retired effective March 1, 2018.2 On May 19, 2019, Complainant applied for the FSD, K Band, position at the JAN but was not hired. The Agency indicated that Human Resources initially referred 26 qualified candidates’ resumes, including Complainant’s, to a three-member panel, who reviewed their applications and resumes. The review panel was looking for candidates who had strength in the criteria of leading change, leading people, building coalitions, critical incident management/communication, and business acumen. Especially, the panel was looking for candidates who had an ability to provide day-to- day operational leadership for Federal security responsibilities at an airport. After a review of applications and resumes, the panel choose seven candidates for an interview. The panelists indicated that Complainant’s resume did not demonstrate he possessed the background, experience, or skill set to serve as the highest-ranking airport authority. Candidates were only interviewed if at least two panel members selected their name for an interview. All three panel members did not select Complainant for an interview, and he, thus, was not hired for the position at issue. A Selectee, one of the seven candidates who was referred for an interview, was ultimately selected for the position. The record reveals that the Selectee was an Acting AFSD, J Band, for Mission Support at the JAN from October 2017 to January 2018; he was a Human Resources Specialist, H Band, at the JAN since July 2016; and prior to that, he was an Army National Guard Deputy Commander supervising and directing day-to-day activities of over 3,100 troops from January 2009 to May 2012. Complainant’s former second level supervisor (S2), African American, the Regional Director, was a chair of the review panel. Complainant claimed that S2 initially hired his former first level supervisor (S1), a FSD, also African American, and S1 was responsible for hiring the Selectee, who had no Transportation Security Administration (TSA) experience. He also indicated that S1, S2, and the Selectee were all close acquaintances and African Americans, and S2 demonstrated favoritism in selecting the Selectee for the position at issue. S2 stated that prior to Complainant’s retirement, S1 informed him that S1 was having ongoing issues with Complainant regarding S1’s supervision, communication, and guidance of Complainant. 2 Complainant’s constructive discharge claim is not at issue. The record indicates that he filed an appeal to the Merit Systems Protection Board regarding that matter. 2020004388 3 The record reflects that S1 issued Complainant an Improvement Period Notice (IPN) dated October 18, 2017, informing him of his unacceptable performance as an AFSD. Therein, Complainant was provided with the opportunity to improve his performance to the satisfactory level and was notified that his Fiscal Year 2017 performance rating would be deferred until this IPN was successfully completed. The record also reveals that Complainant was issued a performance counseling on May 15, 2017. Complainant filed the instant appeal. 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 (EEO MD-110), Chap. 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"). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting Complainant for the FSD position. There is no evidence of a discriminatory motivation on the part of S1 or S2 for selecting the Selectee, who was the Acting AFSD from October 2017 to January 2018. The record indicates that Complainant did not work well with S1 and had performance issues before he retired from his AFSD position in March 2018. Complainant indicates that the Selectee was selected despite his interview score by the panel. The Agency indicates that S2 was not a selecting official for the FSD position at issue and S2 did not recommend the Selectee as the first choice for the position; rather, the Executive Resource Council (ERC) at TSA headquarters made the selection decision for the FSD position, along with all FSD positions nationwide. The ERC selected the Selectee despite his low interview score based on his current successful work performance, including his extensive military leadership experience. Upon review, we find that Complainant failed to show that his qualifications for the position were plainly superior to the Selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2020004388 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). 2020004388 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 August 18, 2021 Date
