U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isabel F.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021001494 Hearing No. 410-2019-00585X Agency No. HS-TSA-00524-2019 DECISION On December 31, 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 January 4, 2021 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Lead Transportation Security Officer at the Hartsfield International Airport in Atlanta, Georgia. On March 26, 2019, Complainant filed formal EEO complaint alleging that the Agency discriminated against her on the bases of disability (asthma and migraines) and in reprisal for prior protected EEO activity (prior EEO case, representing others in EEO process). By letter dated April 8, 2019, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claim: 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. 2021001494 2 On October 26-31, 2018, management denied Complainant an interview for a Supervisory Transportation Security Office position under vacancy announcement # ATL-18-49979. After an 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. On March 20, 2020, the EEOC AJ issued an Acknowledgment Order. Therein, the AJ scheduled the Initial Conference for April 7, 2020. The AJ advised the parties to be prepared to discuss the case, in detail, at the Initial Conference and to supplement the record (prior to the Initial Conference) by producing any document which would further their position. On November 30, 2020 the AJ issued a Decision Without a Hearing, finding no discrimination. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for not interviewing Complainant for the subject position. The AJ found that Agency witnesses asserted that the 87 Best Qualified applicants were vetted for adverse actions for the past two years, disciplinary actions within the last twelve months, and absent without leave for the past twelve months. The AJ found that the Agency witnesses further asserted that it vetted the remaining applicants based on their FY 2018 Performance Scores. Moreover, the AJ found that the record showed the top twenty-three applicants, who scored a “5,” were invited to interview of the position. However, Complainant had a performance score of 4.91. Therefore, she was not interview or selected. Finally, the AJ found that Complainant failed to establish that the AJ’s reasons were pretext for discrimination and/or retaliation. Complainant filed an appeal on December 31, 2020, prior to the Agency issuing its final order. Complainant did not submit a statement or brief in support of her appeal. The Agency subsequently issued a final order dated January 4, 2021, fully implementing the AJ’s decision. Based on the foregoing, we find that Complainant’s appeal is now properly before us. ANALYSIS AND FINDINGS 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. 2021001494 3 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. As an initial matter, we find that the record is devoid of evidence that the AJ issued a Notice of Intent to Issue a Decision Without a Hearing. However, as set forth above, the parties had an opportunity to supplement the record and at the initial conference the parties discussed the case in detail. In addition, Complainant, on appeal, as discussed below, has failed to establish that there is a genuine issue of material fact in dispute. Based on the foregoing, we find that the failure of the AJ to issue a Notice of Intent was harmless error. 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 complainant to prevail, he 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, nondiscriminatory reason for its actions. See Texas 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 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 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The responsible management officials articulated a legitimate, nondiscriminatory reason for not interviewing and selecting Complainant for the subject position. The record contains a declaration under penalty of perjury from an Agency Human Resource Specialist (HR1). Therein HR1 asserts that 87 candidates were on the List of Eligibles and found to be “Best Qualified.” HR1 asserts the Human Resources Department vetted this list for adverse actions for the past two years, disciplinary actions within the past twelve months, and absent without leave for the past twelve months. HR1 asserted that the remaining candidates were further vetted based on FY 2018 performance scores. 2021001494 4 HR1 stated that the vetted list of candidates had twenty-three candidates who had the highest possible performance score of 5 for FY 2018. These twenty-three candidates were invited for interviews for the position at issue. HR1 asserted that Complainant was not interviewed because her FY 2018 performance score was 4.91, below the cut-off score.2 The record reflects that two of the selectees scored a “5” on their FY 2018 performance scores and the third selectee was a Supervisory Transportation Security Officer who had applied for a transfer to Atlanta. We further find that the AJ properly found that Complainant failed to establish that the Agency’s articulated reason was pretext for discrimination and/or retaliation. CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing 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 2 The record corroborates that Complainant scored below a “5” on her FY 2018 performance score. 2021001494 5 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. 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. 2021001494 6 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 December 22, 2021 Date