U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Owen T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000727 Hearing No. 480-2020-00176X Agency No. HS-TSA-01702-2019 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 5, 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 (African American), color (brown), sex (male), age (over 40), and in reprisal for prior EEO activity when, on May 16, 2019, management did not select him for a TSO position under Vacancy Number LAX-F19- F001.2 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. 2 Complainant subsequently withdrew the bases of sex, age, and reprisal. 2021000727 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. After considering Complainant’s response, 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. According to the record, Complainant was a Lead Transportation Security Officer at LAX from 2008 to June 2014. He voluntarily resigned from federal service on June 23, 2014. On May 16, 2019, he applied for a TSO position at LAX which was advertised under Vacancy Announcement Number LAX-F19-F001. He immediately received an email from the Human Resources Service Center stating that he was debarred and not permitted to continue in the selection process. The email stated that he did not meet the eligibility requirements of the position because the Agency’s Management Directive (MD) did not permit the reemployment of a former employee who had been involuntarily separated or resigned after receiving a proposed removal for a minimum of three years after the date of separation. Complainant maintained that he should not have been debarred under the MD because he was not removed from federal service, nor did he resign after receiving a proposed removal; his resignation was voluntary. He also noted that even if he had been removed, more than three years had passed since his separation from the Agency. The Agency subsequently determined that its automated system disqualified Complainant because of his answers to two questions on the application. Question No. 2.6 asked, “Were you terminated, removed, or did you resign from TSA while a proposed termination or removal was pending after July 27, 2017?”3 Complainant answered, “no.” Question No. 2.7, asked, “If you answered ‘yes’ to Question No. 2.6, were you separated due to failure to successfully complete the Annual Proficiency Review or failure to successfully complete necessary required training?” Because Complainant answered “no” to Question No. 2.6, he should have answered Question No. 2.7 as “Not Applicable,” but instead, he answered “no.” Complainant also should have answered “Not Applicable” to Question No. 2.8 based on his answer to Question No. 2.6. Question No. 2.8 asked, “If you answered ‘yes’ to Question No. 2.7, is the position to which you are applying the same or similar to the position from which you were separated…” Complainant answered “yes.” According to the Agency, Complainant’s answers to Questions Nos. 2.7 and 2.8 automatically made him ineligible by the automated system. In her notice to the parties that she intended to issue a decision without a hearing, the AJ noted that Complainant was unable to prove that the Agency’s reason for disqualifying him was pretext. Complainant, she noted, admitted that he answered the two questions incorrectly. The record, she noted, also contained his answers. 3 Effective July 27, 2017, the Agency enacted a new policy concerning the debarment of applicants. 2021000727 3 Complainant argued that the Agency’s reasons were a pretext because of the email that he initially received stated that he was not eligible for the position because he was a former employee who was “terminated or removed or had resigned while a proposed removal was pending.” The AJ found, however, that although the email from the Agency to Complainant contained an erroneous rationale for his disbarment, nothing in the record suggested that the errors in the email were linked to his race or color. In his response to the AJ’s notice, Complainant took exception to her determination that “nothing in the record suggests that any individual decisionmaker was responsible for disqualifying Complainant, let alone aware of Complainant’s protected statuses.” Complainant maintained that A1, the Director of Recruitment and Field Hiring Operations, at the Agency’s Headquarters in Arlington, Virginia, discriminated against him based on race and color because ten applicants who did not share his race or color answered the “same questions wrong on their employment application [and] were allowed to proceed with the employment process.” According to Complainant, “discovery is necessary to determine [A1’s] motivation/reasons for allowing comparative employees the opportunity to continue with the employment process…” The AJ found these arguments to be unpersuasive because Complainant’s description of his ten fellow applicants was inaccurate. The record indicates that seven of these applicants were Black like Complainant, and, like Complainant, described their complexions as brown. The AJ also noted that seven of the ten applicants inaccurately answered a different question than Complainant, i.e., whether they were separated from the Agency due to misconduct or unacceptable performance after July 27, 2017. A1, in affidavits pertaining to these seven applicants, indicated that they were all separated before July 27, 2017, and as a result, their applications were corrected, and they were allowed to proceed in the process. Therefore, the AJ found that the questions and answers that initially debarred these seven applicants were not the same as those that resulted in Complainant’s debarment. With respect to Applicant 8, the AJ noted that nothing in the evidence offered by Complainant indicated that her disbarment was lifted or that she continued with the application process. Regarding Applicant 9, and Applicant 10, the AJ noted that while it was unclear which application questions they answered incorrectly, there was no evidence that A1 was motivated by their race or color as alleged by Complainant. In this regard, the AJ noted that Complainant did not even allege that A1 had any knowledge of the race and color of Applicant 9, Applicant 10, or Complainant. The record indicates that A1 had no working relationship with Complainant nor were they personal acquaintances. The AJ further noted that the Agency did not collect information regarding the race or color of an applicant during the application process. 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., 2021000727 4 846 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.4 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. 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. 4 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)). 2021000727 5 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. 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. 2021000727 6 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
