Sherman K.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 24, 2016

0120142664 (E.E.O.C. Aug. 24, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sherman K.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120142664

Hearing No. 350-2013-00029X

Agency No. HS-TSA-21728-2012

DECISION

Complainant filed an appeal from the Agency’s June 30, 2014, 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. The Commission deems the appeal timely and accepts it for de novo review. For
the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Transportation Security Officer (TSO) at the Dallas / Fort Worth
International Airport. On April 17, 2012, Complainant filed an EEO complaint in which he
alleged that the Administrative Officer (AO) discriminated against him on the bases of race
(Caucasian), sex (male), color (White), and age (52) by transferring him into the Agency’s
Vocational Rehabilitation Program (hereinafter referred to as the “VR Program”), effective
December 15, 2011. At the conclusion of the ensuing investigation, the Agency provided
Complainant with a copy of the investigative report (IR) and notice of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).

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.
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Although Complainant timely requested a hearing, the AJ assigned to the case granted the
Agency’s motion for summary judgment and issued a decision on May 21, 2014, without
holding a hearing. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

Complainant averred that he injured his back on the job sometime in 2004, while lifting
luggage, and that between 2004 and November 2011, he was on light duty. He also stated that
in November of 2011, the AO presented him with a letter informing him that he would be
moved into the VR Program effective December 15th of that year. IR 56, 76. A letter from
Complainant’s treating physician dated October 3, 2011, indicated that Complainant had a 30-
pound lifting restriction which was permanent, and that he had reached the point of maximum
medical improvement. IR 81. The AO averred that he had moved Complainant into the VR
Program after receiving permission to do so from the Office of Workers’ Compensation in the
Agency’s headquarters, and that he had placed twelve other TSOs into the VR program under
circumstances that were identical or similar to those of Complainant. IR 66-70.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on his disparate treatment claim, Complainant
would have to present enough evidence to raise a genuine issue of material fact as to whether
the AO was motivated by unlawful considerations of his gender, age, skin color, or race when
he ordered that Complainant be moved into the Vocational Rehabilitation Program on
December 15, 2011. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000). Complainant may do so by showing that the reason
articulated by the AO for placing him in the program was a pretext, i.e., not the real reason
but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515
(1993).

When asked by the EEO investigator why he believed that the AO had discriminated against
him on the above-referenced bases in connection with his transfer into the VR Program in
December 2011, Complainant responded that the Agency was allowing other officers to work
light duty and was removing only those officers who they wanted to move. IR 57-58.
However, he was unable to identify any of those individuals. IR 58. The AO responded that
Complainant was on limited duty, not light duty as he claimed. The AO reiterated that he had
moved Complainant into the VR Program only after having received permission from the
Agency’s headquarters to do so. Complainant has not presented any sworn statements from
other witnesses or documents that contradict the AO’s explanation for the transfer or which
call his veracity into question. Ultimately, we agree with the AJ that Complainant has not
been able to raise a genuine issue of material fact regarding the AO’s motive for placing
Complainant into the VR Program that would justify holding a hearing.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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 24, 2016
Date