Arthur F.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Apr 9, 2019

0120180231 (E.E.O.C. Apr. 9, 2019)

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

Arthur F.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120180231

Agency Nos. HSTSA264722016
HSTSA007332017

DECISION

On October 17, 2017, 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
October 3, 2017, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 worked as a Transportation
Security Officer, SV-1802-E, at the Baltimore Washington International Airport in Baltimore,
Maryland.

On July 18, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of age (over 40) and reprisal for prior protected EEO
activity when:

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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1) On May 26, 2016, he learned that he was not selected for the position of Master
Transportation Security Officer, SV-1802-F, at the Agency’s Coordination Center
(Vacancy Announcement Number BWI-16-104644).

Thereafter, on January 31, 2017, Complainant filed another formal complaint, alleging that he was
subjected to discrimination on the basis of reprisal when:

2) On January 20, 2017, he learned that he was not referred for the position of Supervisory
Transportation Security Officer (STSO), which was advertised under Vacancy
Announcement Number BWI-16-228667.

The Agency consolidated Complainant’s formal complaints for investigation. At the conclusion of
the investigation, 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
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

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, at Chapter 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”).

On appeal, Complainant contends that his resume clearly reflects his qualifications for the
positions of Master Transportation Security Officer and Supervisory Transportation Security
Officer. He alleges that the Agency misrepresented his interview performance to retaliate against
him.2

To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Complainant must establish a prima facie case by demonstrating that he was subjected to an
adverse employment action under circumstances that would support an inference of
discrimination.

2 To the extent Complainant desires on appeal to raise a claim of disparate impact regarding the
Agency’s hiring practices, we note that the Commission has long held that it is inappropriate for
complainants to raise new claims on appeal. Even if we considered this claim, we find that
Complainant has not provided any evidence of a disparate impact involving his nonselections.
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McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).
Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the
Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance
of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but
were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center
v. Hicks, 509 U.S. 502 (1993). 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
713-14 (1983).

Assuming arguendo that Complainant established a prima facie case of discrimination on the
alleged bases, we note that the Agency has articulated legitimate, nondiscriminatory reasons for
its actions. For claim (1), the Agency averred that Complainant was not selected for the position
of Master Transportation Security Officer because he received failing scores for the panel
interview phase of the selection process. The Agency noted that the interview panel found
Complainant’s responses to interview questions to be difficult to follow and not completely
responsive to the questions asked. The Agency explained that none of the selectees received failing
scores for any of their responses, while Complainant received failing scores for his responses to
three questions. As for claim (2), the Agency explained that Complainant was not selected for the
position of Supervisory Transportation Security Officer because his resume failed to demonstrate
his qualifications for the position. The Agency noted that the human resources specialists who
reviewed Complainant’s resume were unaware of his prior protected EEO activity.

Complainant now bears the burden of establishing that the Agency's stated reasons were merely a
pretext for discrimination. Complainant v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec.
6, 1996). In nonselection cases, Complainant can demonstrate pretext by showing that his
qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dep’t of
Veterans Affairs, EEOC Appeal No. 0120141712 (Dec. 3, 2015).

After careful consideration of the evidence of record, including Complainant’s contentions on
appeal, we find that Complainant has not shown that his nonselection for the position of Master
Transportation Security Officer was due to his age and/or reprisal for prior protected EEO activity.
While we recognize that subjective criteria in the hiring process may offer a convenient pretext,
the record in this case shows that the Agency identified relevant competencies for the position and
asked all candidates the same questions to assess their ability to perform in each competency.
Unlike the selectees, Complainant provided rambling and incomplete answers to interview
questions. Ultimately, Complainant’s poor interview performance and failing interview scores
prevented him from advancing in the selection process. To the extent Complainant believes that
he performed well during the interview and had the necessary qualifications for the position, we
agree with the Agency that Complainant’s self-assessment is insufficient to show that he was
plainly superior to the selectees. We see no evidence in the record to suggest that the Agency
misrepresented his interview performance.
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Based on the totality of the record, we conclude that Complainant has failed to fulfill his burden
of showing that the Agency’s articulated reasons were pretext for discrimination.

As for claim (2), we agree with the Agency’s finding of no discrimination with regard to
Complainant’s nonselection for the position of Supervisory Transportation Security Officer.
Although Complainant alleges that his nonselection was due to reprisal for his prior protected EEO
activity, the record shows that the human resources specialists who assessed his resume and found
him to be unqualified were unaware of his prior EEO activity. Even if we were to assume that the
Agency made a mistake in assessing his qualifications, Complainant has not presented any
evidence to link the mistake to reprisal. Moreover, we see no evidence to suggest that Complainant
was plainly superior to the selectees.

Finally, we reject Complainant’s contention that on January 22, 2014, the Agency acknowledged
that it had discriminated against him, as the record shows that the posting notice at issue pertains
to a different person.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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.
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The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 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

April 9, 2019
Date