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

Equal Employment Opportunity Commission

May 13, 2015

01-2013-2828-0500 (E.E.O.C. May. 13, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120132828

Hearing No. 510-2009-00167X

Agency No. HS08TSA004980

DECISION
On July 18, 2013, Complainant filed an appeal from the Agency’s June 13, 2013 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 pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint in 2008, Complainant was both a former
employee of the Agency, having been employed as a GS-15 Industrial Engineer in Hawaii from
2002 to 2005, and an applicant for a management position with the Agency in West Palm
Beach, Florida. On July 5, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (Caucasian), sex (male), and age (56)
when he was not selected for the position of Assistant Federal Security Director for Screening
at Palm Beach International Airport (PBI).1

1 The complaint also set forth a separate claim based on the Agency’s failure to interview
Complainant for the position in question. The Administrative Judge assigned to the case
dismissed this claim summarily. On appeal, Complainant has raised no issue based on this
claim. Accordingly, we will not discuss it further.
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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.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for
summary judgment on May 20, 2013. 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.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.

, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case. For the reasons set
forth below, we conclude that this case does not present a genuine issue of material fact
requiring a hearing.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally 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). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
In this case, the Agency explains that Complainant was not selected for the position in question
because the successful applicant had more “recent operational experience” than did
Complainant. Report of Investigation at 136, 144. Specifically, at the time of the selection in
2008, the selectee had been employed continuously by the Agency at PBI since 2002, including
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several supervisory positions, while Complainant’s experience with the Agency consisted of
service as an Industrial Engineer at the Agency’s facility in Kona, Hawaii from 2002 to 2005.
In addition, the selectee had served in an acting capacity as Assistant Federal Security Director
for Screening, the position at issue here. During that service, the selecting official had the
opportunity to personally observe the selectee’s performance of her duties, which he evaluated
as excellent. These are legitimate, nondiscriminatory reasons for the Agency’s decision not to
select Complainant for the position.

In a nonselection case, a complainant may show that an employer's reason for the non-
selection was pretext for discrimination by demonstrating that his qualifications were “plainly
superior” to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). In
the instant case, Complainant has adduced no evidence that would support the conclusion that
Complainant’s qualifications were plainly superior to those of the selectee. In his opposition to
the Agency’s Motion for Summary Judgment, Complainant argued that the selection criteria
were “wholly subjective” and therefore invalid. The Agency’s explanation of its selection
decision based on the selectee’s long tenure at PBI, in particular on her experience serving in
an acting capacity in the position in question, is specific and concrete, rather than subjective.
In any event, subjective criteria are frequently relied upon in promotions to supervisory or
management positions, such as this position. The use of such criteria is not, in and of itself, an
indicator of discriminatory motivation. See Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998). The Commission has held that an
employer has more discretion in selecting management level employees because the qualities
needed to successfully perform in such positions are not easily quantifiable. See White v.
Department of Interior

, EEOC Request No. 05930686 (September 1, 1994).

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order fully implementing the AJ’s decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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
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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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 13, 2015