Billy B.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Apr 12, 2019

0120182057 (E.E.O.C. Apr. 12, 2019)

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

Billy B.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120182057
Hearing No. 410-2017-00537X
Agency No. HSTSA-00157-2017

DECISION

On June 4, 2018, 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
May 7, 2018, final decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

The issue presented is whether the Agency’s final agency decision (FAD) erred in finding that
Complainant was not subjected to discrimination when he was not assigned to section where he
regularly worked.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer (TSO) at the Agency’s Atlanta Hartsfield International Airport in Atlanta,
Georgia. On October 17, 2016, Complainant was scheduled to work the oversize departures area
with another TSO.

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.
0120182057

2
When Complainant arrived late for his shift, he was told by management that the person currently
working the oversize department did not need help, so therefore Complainant was assigned to the
Baggage Inspection Room for the remainder of his shift.

On February 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), and color (Brown) when on
October 17, 2016, he was not allowed to work his scheduled rotation in the oversized (departures)
area.

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). Complainant timely requested a hearing but
subsequently withdrew his 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 him to discrimination as alleged. Specifically, the Agency maintained that it
articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not
present in the oversized departures location at the start of his shift, so another TSO was assigned
in Complainant’s absence. Once Complainant was located he was assigned to another work area,
as the person working the oversized location did not need assistance. The Agency found that
Complainant failed to show that its reasons were pretext for discrimination.

CONTENTIONS ON APPEAL

Complainant did not submit a brief on appeal. The Agency however, submitted a brief on appeal
and, contends, among other things, that the FAD should be affirmed, as it articulated legitimate,
nondiscriminatory reasons for its actions and Complainant did not show that the reasons were
pretext or that discriminatory animus was involved with the Agency’s decision to reassign him for
that day.

ANALYSIS AND FINDINGS

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”).

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
0120182057

3
Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438
U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to the Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume arguendo that Complainant
established a prima facie case of sex, color, and race discrimination, the Agency articulated
legitimate, nondiscriminatory reasons for its actions, as indicated above, and Complainant did not
show that management’s actions were related to his race, color, or sex, or that the reasons were
pretext for discrimination. Moreover, we find that Complainant did not show, and, there is no
evidence in the record, that management acted outside of its purview, with respect to assigning
employees to work in areas based on the needs of the Agency. We note that employers have broad
discretion to set policies and carry out personnel decisions and should not be second-guessed by a
reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v.
Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).

CONCLUSION

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that he was
subjected to discrimination is AFFIRMED.

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.
0120182057

4
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.

0120182057

5
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 12, 2019
Date