Ashlee P.,1 Complainant,v.Chad Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 12, 2020

2019003143 (E.E.O.C. Aug. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashlee P.,1 Complainant, v. Chad Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019003143 Agency No. HS-TSA-24322-2015 DECISION 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 final decision concerning her 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. 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 Lead Behavioral Detection Officer at the Los Angeles International Airport (LAX), Los Angeles, California. Report of Investigation (ROI), at 14. From May 5, 2015, through May 15, 2015, the Agency advertised Supervisory Behavioral Detection Officer (SBDO) vacant positions under Job Opportunity Announcement No. LAX-15-894637. ROI, at 103-104. The job qualifications under the announcement noted that applicants must have at least six months of work experience as a work leader, team leader, or supervisor in any type of work environment, which demonstrated proficiency or the potential to develop proficiency in tasks. Id. at 71, 104. 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. 2019003143 2 Complainant applied to the announcement for a vacant SBDO position on or about May 15, 2015. However, Complainant was not placed on the Certificate of Eligibles and she was not interviewed for the position. Id. at 35. Therefore, she was not selected for a vacant SBDO position. According to Complainant, three individuals outside her protected classes were selected for SBDO vacant positions under the job announcement. On August 21, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (brown) when on May 31, 2015, she discovered that she was not selected for the position of Supervisory Behavioral Detection Officer (SBDO), Job Opportunity Announcement No. LAX- 15-894637. Following the 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 requested a hearing but subsequently withdrew her request. Consequently, 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 her to discrimination as alleged. The Agency found that it articulated legitimate, nondiscriminatory reasons for Complainant’s non-selection, which Complainant did no show were pretextual. In so finding, the Agency referred to a Human Resources (HR) Representative who noted that "a current employee's [resume] must show that they have the experience, backed-up by their SF50s showing their position or SF52s (or detail document) showing that they have the experience." The Agency noted that Complainant conceded that her official personnel file did not include an SF-50 or SF- 52 demonstrating the required experience for the SBDO position. The Agency noted that Complainant’s resume did not demonstrate six months of experience as a work leader, team leader, or supervisor in the private sector in accordance with the Job Opportunity Announcement. The Agency also observed that Complainant stated that she did not know who the responsible management official was and if he/she knew of her protected classes. The Agency therefore found that Complainant did not establish that she was subjected to discrimination. STANDARD OF REVIEW 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”). 2019003143 3 ANALYSIS AND FINDINGS Non-Selection To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, we find that assuming, arguendo, Complainant established a prima facie case of discrimination based her protected classes, the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. We note that a HR Representative noted via email that Complainant’s resume did not demonstrate six months of experience as a work leader, team leader, or supervisor in the private sector in accordance with the Job Opportunity Announcement. ROI, at 71-73. The HR Representative noted that Complainant’s official personnel file did not include the proper documentation showing the requisite experience for the SBDO position. Id. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 256. In an attempt to show pretext, Complainant averred that three individuals outside her protected classes with less experience than her were selected under the Job Opportunity Announcement. Upon review, we find that Complainant has not established that the Agency’s reasons for her non-selection were pretextual based on her protected classes. In so finding, we note that on May 29, 2015, a HR Representative documented that Complainant’s resume did not “demonstrate experience as a work leader, team leader, or supervisor in the private sector to meet the 6 months requirement.” ROI. at 73. Even assuming, that this HR Representative made a mistake in finding that Complainant did not meet the job qualifications under the announcement, Complainant has not shown that any such mistake was motivated by discriminatory animus. CONCLUSION We AFFRIM the Agency’s final decision finding no discrimination. 2019003143 4 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. 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. 2019003143 5 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 12, 2020 Date