0120152067
12-06-2017
Belle S.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Belle S.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120152067
Hearing No. 540201100022X
Agency No. HS09TSA005984
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, the Agency's Final Order concerning her equal employment opportunity ("EEO") complaint alleging discrimination in violation of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Behavior Detection Officer ("BDO") at the Denver International Airport ("DIA") in Denver, Colorado.
The Parties stipulated the following claims of discrimination:
1. Whether the Agency discriminated against Complainant on the bases of sex (female), age (50), and reprisal (prior protected EEO activity) when:
a. In April 2009 she was discriminated against in the hiring/interview process and ultimately was not selected for a BDO Manager position; and
b. On an unspecified date after the parties attempted mediation to resolve Claim 1(a), Complainant discovered that she had been removed from the National Training Team ("NTT") and was under investigation by Management.2
2. Whether the Agency discriminated against Complainant on the basis of reprisal (EEO activity related to Claim (1) when, on January 6, 2010, she received a Predecisional Notice recommending termination because information she provided on a job application could not be verified.
At the conclusion of the investigation into Complainant's complaint, 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 (EEOC or Commission) Administrative Judge ("AJ"). Complainant timely requested a hearing and the AJ held a hearing from January 25 through 27, 2012, and on March 23, 2012, and issued a decision on March 16, 2015.
In reaching her decision, the AJ determined the evidence presented established the following facts:
Complainant began working as a G-band level Behavior Detection Officer ("BDO") in April 2007, after working for the Agency as a Transportation Security Screener since early 2004. Complainant was also on the Agency's National Training Team ("NTT"), which involved regular deployment to other airports to train Agency employees on subjects such as conflict resolution and Screening Passengers by Observation Techniques ("SPOT" Program).
When she was not deployed to conduct training, Complainant was assigned BDO duties at the Denver airport under her first-line supervisor, a BDO Manager ("M1") (male, 55), and her second-line supervisor ("M2") (male). Complainant also reported to the Transportation Security Manager (male, 44), who was in charge of the SPOT Program.
Claim 1(a)
On January 25, 2009, Complainant applied for an H-band level TSM-BDO position ("BDO Manager"), which required at least one year of G-band (or equivilant) experience. The Agency's Office of Human Capital ("OHC") reviewed the applications, compiled a "best qualified list" of candidates ("BQ List"). The BQ list was comprised of four women, including Complainant, and eight men, including the selectee ("C1") (age 32). On February 27, 2009, the BQ List was forwarded to the Agency's Denver Human Resources Department ("HR") where an HR Specialist ("H1") (female, 40) screened the candiates' applications for any disqualifying issues such as resume inconsistencies or failure to meet the time-in-grade requirement.
In March 2009, a panel was convened to interview the candidates. The Lead Panelist ("P1") (male, mid-50s), was a BDO Manager stationed at the Los Angeles International Airport, and two other panelists, a BDO TSM (female, 55) ("P2"); and a Transportation Security Inspector (female, 49) ("P3"), both stationed at the Denver airport. P1 was scheduled to be in Denver for the interviews while Complainant was out-of-state on an NTT assignment, so Complainant was informed that her interview would be conducted by phone. Both H1 and P2, denied Complainant's requests to reschedule so that she could interview in person, citing logistical constraints related to P1's travel. The Panelists asked the candidates identical questions and used a 5-point scale to independently rate their responses based on specific "competencies." After each interview, the Panelists determined the candidate's score through "consensus scoring," that is, discussing their individually calculated scores and coming to an agreement on an overall score. Complainant and C1 were only asked 2 of the questions, as they already answered the other questions when interviewing to become G-band BDOs. The Panel considered records of their G-band BDO interviews during consensus scoring. They also contacted the candidates' supervisors and considered their feedback about the candidates' ability to perform the BDO Manager position.
Complainant received 43 points, the third highest score among the panalists. The second highest scoring candidate (male) scored 45 points, and C1 received a score of 46. The Panel submitted a referral list of candidates based on their scores to the Acting Assistant Federal Security Director ("AFSD-S") (female) and the Assistant Deputy Federal Security Director (male, 68) who recommended C1 to the Deputy Federal Security Director ("DFSD") (male, 66). C1 was formally selected by the DFSD for the BDO Manager position in April 2009.
On April 15, 2009, Complainant initiated the instant complaint by contacting an EEO counselor and alleging that one of the panalists was biased and improperly influenced the other two to lower her rating, that she was deliberately placed at a disadvantage with the phone interview, and that H1 and the panelists violated Agency protocol in order to hire a younger, male applicant.
Claim 1(b)
In July 2009, Complainant learned that the Director Assistant General Manager of OHC, Office of Security Operations, ("H2") (male, 47) placed her on "nondeployable status," removing her from the training schedule completely, because there were two open investigations into her conduct.3 The first was prompted when C1 reported her for inappropriately discussing Sensitive Security Information ("SSI") and disclosing Personal Identifiable Information ("PII") about another NTT member on June 5, 2009, at an offsite teambuilding event. The second investigation arose on June 15, 2009, when a coworker informed the on-duty supervisor that Complainant acted in a rude and condescending manner and violated standard procedure for prohibited items at a security screening point. On September 16, 2009, Complainant was issued a 3-Day Suspension (unpaid) for the June 15, 2009 incident. Complainant appealed to a peer review board, which found no standard procedures violation, and decreased the suspension to 1 day (unpaid) for acting rude to her coworkers. It appears tht no adverse action was taken as a result of the investigation into the June 5, 2009 allegations.
Agency management denied that Complainant was removed from the NTT. However, the record indicates that because she was in non-deployable status, she was effectively unable to travel to conduct training.
Claim 2
In Fall 2009, Complainant applied for an H-band Supervisory Screener position. H1, who was assigned to screen applicants for this position, noticed that Complainant described duties that were beyond the scope of a G-Band employee in the NTT portion of her resume. H1 forwarded Complainant's resume to H2, explaining she could not verify that Complainat carried out the duties described in her resume. However, H1 still included Complainant on the BQ List and Complainant interviewed for the position, but was not selected.
On January 6, 2010, M2 met with Complainant, with M1 present as a witness. M2 informed Complainant that HR was conducting an investigation of the resume she submitted for the Supervisory Screener position, and issued her a predecisional notice. The notice provided Complainant with a list of the specific areas on her resume that allegedly could not be verified and instructions for how to respond. Depending on the outcome of the investigation, "informal/formal discipline could be imposed up to and including possible removal from Federal Services." However, there is no evidence that any formal disciplinary action was ever taken on this matter.
Complainant pointed out that she was placed on the BQ List and interviewed for the position, yet this was the first she'd heard about an allegedly disqualifying discrepancy on her resume. Additionally, both the HR and management officials involved with the predecisional notice were also named in Claim 1 of the instant EEO complaint, which was in the investigatory stage at the time. Suspecting the predecisional notice was motivated by discrimination, Complaint added it as a Claim 2 in the instant complaint. However, the AJ determined that these factors, while suspicious, were not enough to establish retaliatory animus.
Based on this evidence, the AJ concluded no discrimination or unlawful retaliation had been proven. The Agency issued a Final Order on April 17, 2015, adopting the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
As a preliminary matter, we address Complainant's repeated challenges, on appeal, to the AJ's credibility findings. It is well established that an AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted as fact unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive ("MD-110") 9-17 (Aug. 5, 2015). Generally, the Commission will not disturb an AJ's credibility determinations if such determinations are based on the AJ's observations of the demeanor of the witnesses. Esquer v. United States Postal Serv., EEOC Request No. 05960096 (Sept. 6, 1996); Willis v. Dep't of the Treasury, EEOC Request No. 05900589 (Jul. 26, 1990). Based on the record, including Complainant's submissions on appeal, we find no indication that the AJ exceeded her authority or abused her discretion in the conduct of the hearing. Moreover, Complainant did not point to objective evidence of record that adequately contradicted the AJ's credibility determination concerning witnesses that testified at the hearing.
We examine allegations of disparate treatment based on indirect evidence by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
However, the 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, as here, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Claim 1(a) - Hiring Process and Nonselection
Complainant bears the burden of establishing that the Agency's legitimate, nondiscriminatory reason for the alleged discrimination-that C1 was selected over Complainant based on a legitimate merit based selection process-is pretext for discrimination. In a nonselection case, pretext may be demonstrated in a number of ways, including a showing that the complainant's qualifications are "observably superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We will only substitute our judgment for that of the selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate, if other facts suggest that proscribed considerations entered into the decision-making process. See Williams v. Dep't of Education, EEOC Request No. 05970561 (Aug. 6, 1998) citing Bauer.
On appeal, Complainant argues that the Agency's stated rationale is pretext because it did not follow its own hiring policies and process. Noteably, she contends that C1 should never have been placed on the BQ list because he did not meet the time-in-grade requirement. H1 testified that in addition to Complainant, two other candidates raised the same concern in EEO complaints about C1's selection. Based on the record, the BDO Manager vacancy announcment required one year or equivilant G-Band experience. C1 became a G-band BDO on February 3, 2008, six days shy of the one-year requirement. Substantial evidence, however, supports the AJ's determination that there was no evidence that discriminatory or retaliatory factors influenced the Agency's decision to consider C1 despite this technicality. The record shows that by the time C1's name was submitted for consideration on February 27, 2009, he had attained the requisite time-in-grade. This, in combination with his prior work experience, created a non-discriminatory reason for C1's placement on the BQ list.
Complainant further argues that the panel process was used as pretext for discrimination - most notably by requiring her to interview by phone instead of in person, and the lowering of her "core competency" teambuilding score. While we agree that the Panel's decision to interview Complainant by phone could have placed her at a disadvantage compared to the candidates who interviewed in person, we find the AJ properly determined that Complainant "produced no evidence that the interview was anything but the product of circumstance rather than malicious design." We also agree with the AJ's finding that Complainant's allegations that either H1 lowered her score after several individuals raised complaints about C1's selection, or the panelists lowered their individual scores for Complainant as a result of bias was "without merit." Complainant repeats her bald statements on appeal without supporting evidence.
We note that Complainant raises a number of other allegations of bias and points out alleged violations of the Agency's process based on technicalities (e.g. which Panelist submitted the scores), and find adequate support for the AJ's determination that there is no evidence of pretext or discrimination.
Complainant argues that her qualifications were observably superior to those of C1. She notes that compared with his barely one year as a G-Band BDO, Complainant held the position for two and a half years at the time she applied. Complainant had been an NTT trainer for over a year, both taking and conducting training on BDO policies and SOP, and held bachelor and master's degrees in relevant subject areas. Complainant cites that she was Employee/TSO of the year in 2008, Screener of the Quarter in 2006 and 2007, and sat on the National Advisory council which received the John W. Magaw Values award for outstanding leadership in 2008. She points out that C1 was not on the NTT, and was working on earning a bachelor's degree in criminology, a subject Complainant taught as a college professor.
Agency witnesses, however, testified that after the interviews, M1 and the other supervisors met to discuss the candidates' reliability, conduct, performance, experience, and disciplinary records, and provided their recormmendations. These recommendations were submitted to the selecting official along with the Panel's recommendations. M1, as Complainant's first level supervisor, did not recommend Complainant for the position. He stated that while she might have appeared more qualified than C1 "on paper," his perceptions of Complainant's poor judgment, conduct, and"difficulty getting along well with others" influenced his recommendation. He also noted that Complainant had no recent or TSA supervisory experience, while C1 was a "LTSO" at the time of his application, a position where he routinely filled in for regular supervisors.
We find that the evidence indicates that both Complainant and C1 met the threshold education requirement for the BDO Manager position. While Complainant's educational background may have enhanced her qualifications, the Agency has the discretion to select the qualifications it wished to emphasize so long as it was not influenced by discriminatory factors. M1 and M2 both testified that they preferred C1's law enforcement experience, which was more extensive and more recent than Complainant. They felt C1 had stronger supervisory experience than Complainant, and did not consider her training or leadership experience on par with C1's leadership experience gained through military service. Although Complainant had many qualifications relevant to the position, substantial evidence supports the AJ's determination that there is no evidence that discrimination played a role in the ultimate selection decision.
Claim 1(b) - Removal from the National Training Team ("NTT")
The Agency's legitimate nondiscriminatory reason for its alleged actions was that H2, who was in charge of the NTT program, decided to place Comlainant on "undeployable status" when he learned that Complainant was the subject of two open investigations. The AJ found H2's testimony on the matter "highly credible." Moreover, both investigations concerned allegations that, if true, would be relevant to Complainant's effectiveness as an NTT trainer since they concerned alleged violations of Agency security standard procedures. The AJ determinmed, and we agree, that Complainant provided insufficient evidence to challenge the reasonableness of suspending the deployability of an NTT member who was under investigation for a standard operating procedure violation.
However, the AJ also found it necessary--and we agree--to examine both of the underlying investigations that led to Complainant's nondeployment to determine if either was motivated by discriminatory animus.
The AJ found no evidence that the first investigation, arising from C1's allegation that Complainant disclosed Sensitive Security Information ("SSI") and Personal Identifiable Information ("PII") during an offsite event on June 5, 2009, was discriminatory. As the legitimate nondiscriminatory reasons for initiating the investigation went unchallenged by Complainant, and she has not provided evidence of discrimination aside from her own bald assertions, we agree with the AJ's finding.
The second investigation was initiated when two TSA officers reported Complainant for violating standard operating procedures for handling a prohibited item during passenger screening. The evidence shows that on June 15, 2015, they were all working at a checkpoint, when a passenger in their lane placed a pocket knife in a container on the conveyor belt to be x-rayed. When T1 moved to take the knife, in accordance with TSA procedures, Complainant said "let it through, it's a referral" in an abrupt tone, explaining, "because I said so." One of the other officers found this rude and condescending, so he reported the incident to the Manager on Duty ("MD") (male). On June 16, 2009, MD emailed a number of management officials stating the officers in the lane, "felt that [Complainant] was rude and condescending during the incident." As a result, the second investigation concerning Complainant's conduct was initiated. Following the investigation, it was initially determined that Complainant's actions were in violation of standard operating procedures, so Complainant was issued a 3-day suspension without pay. Complainant appealed to a Peer Review Board that determined no violation of BDO procedures occurred. The Board reduced the suspension to one day for the charge that she behaved in a "rude and condescending" manner during the incident.
The AJ determined that the investigations were motivated by reprisal, finding no persuasive evidence that those involved were aware of Complainant's EEO activity related to the nonselection. While the AJ acknowleges that S1 became aware of Complainant's nonselection complaint in July 2009, that alone was not sufficient to establish retaliatory motivation. The AJ also found no evidence of sex or age discrimination.
On appeal, Complainant also cites her role as a witness for the Agency in a MSPB action against a manager, which ultimately led to his demotion. However, this action, which involved the manager bringing a prohibted hidden reording device to work, was not EEO related, so it cannot be the basis for a retaliation claim under Title VII. Ultimately, Complainant failed to show that the Agency's rationale that she was under investigation was pretext for unlawful retaliation.
Claim 2 - Predecisional Notice
The Agency's legitimate nondiscriminatory reason for issuing a Predecisional Notice was that it was issued in response to Complainant submitting a resume with portions that could not be verified. The AJ agreed with the Agency's contention that H1 acted in accordance with her responsibilities as an HR Specialist and consistant with Agency procedure by flagging the resume submitted by a G-band employee that described duties more fitting for an H or I-band level employee. The AJ found H1's testimony credible; and the decision to issue a predecisional notice is supported in the record, which includes the regulations informing Agency policy for instances where portions of a candidate's resume cannot be verified.
Complainant argues that these reasons were pretext for discrimination and retaliation, because she was able to interview for the position after H1 flagged her resume, and because her resume was accurate. Specifically, Complainant argues that she performed job responsibilities beyond her pay grade as a trainer in the NTT, and that this could not be verified because there is no job description explaining the duties related to the NTT.
Having thoroughly reviewed Complainant's resume in the record, we agree with the AJ's finding that "at a minimum [Complainant] had exaggerated her duties." Moreover, Complainant failed to provide evidence that that H1 and H2's actions were inconsistent with their HR duties, or produce evidence supporting any other indication that the predecisional notice was pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's conclusion that no discrimination or unlawful retaliation was proven.
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 tends 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.
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
December 6, 2017
__________________
Date
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 According to the record, Complainant was not formally "removed" from the NTT, but rather placed on "undeployable status." Like the AJ, we will interpret allegations that Complainant was "removed" from NTT as a reference to her placement on "undeployable status," and consider these terms interchangeable for purposes of this decision.
3 H2 is referenced in the AJ's decision as "a high-level [Agency] executive based at [Agency] Headquarters in Arlington, Virginia with oversight responsibilities over the entire NTT."
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