Lawrence L.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

2019000388 (E.E.O.C. Sep. 11, 2019)

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

Lawrence L.,1
Complainant,

v.

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

Appeal No. 2019000388

Agency No. HS-TSA-00621-2013

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 20, 2018
final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Transportation Security
Officer, SV-1802, E-Band at the Los Angeles International Airport in Los Angeles, California.

On February 26, 2013, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on his race (Asian/Pacific Islander), sex (male), and color
(medium dark) when, on December 9, 2012, Complainant’s employment was terminated when
he failed a proficiency test three times.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity

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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Commission Administrative Judge (AJ). Complainant initially requested a hearing but
subsequently withdrew his request.

On August 20, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This 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 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for terminating
Complainant’s employment. The Acting Deputy Federal Security Director (“ADFSD”) testified
that he was the deciding official who issued Complainant the Notice of Proposed Non-
Disciplinary Removal on October 5, 2012. The ADFSD stated that he issued the Proposed
Notice of Removal because Complainant failed to pass the OSARP2 Mastery Assessment
(“OMA”), a proficiency assessment, after three attempts. The ADSFD further stated that
Complainant did not provide any “extenuating circumstances” during his oral and written replies
to the Proposed Notice of Removal that the ADSFD felt justified a conversion to a single
function officer position in lieu of removal from the Agency.

2 OSARP is an abbreviation for On-Screen Alarm Resolution Protocol.
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The ADFSD explained that the Agency’s PASS3 2012 Handbook provides a removal process for
employees to fail the OMA proficiency test three times. The ADSFD explained that he did not
give Complainant an opportunity to take the test for a fourth time because he determined that all
three tests administered met the national established OMA guidelines, and the remediation
provided to Complainant met the requirements of the PASS 2012 handbook. However, the
ADFSD clarified that other employees were given a fourth opportunity to take an SOPA
assessment after failing this test three times because it was determined by Agency headquarters
that remediation for all SOPA tests conducted at the Los Angeles Airport did not meet the
minimum 2012 PASS Handbook requirements. In contrast, the ADFSD stated that Complainant
failed the OMA assessment three times and was provided remediation consisting of SOP Review
Q&A which met the minimum requirements set forth by the 2012 PASS Handbook.

A copy of the Notice of Proposed Non-Disciplinary Removal dated October 1, 2012, states that
Complainant failed the OMA proficiency test on August 1, 2, and 10, 2012. The Notice further
states that Complainant was provided the required two hours of remediation after taking the
OMA test on August 1 and 2, 2012, Complainant’s supervisor granted him one additional hour to
study the SOP after both OMA testing failures, and Complainant was allowed to choose his own
test dates. The Notice also states that:

TSA Performance Accountability and Standards System 2012 User’s Guidance
for Inability to Qualify on Technical Proficiency Assessment states that if an
employee does not qualify for a PASS Technical Proficiency assessment after
three (3) attempts, the employee is subject to removal procedures.

The Aviation and Transportation Security Act (“ATSA”) requires that TSA
conduct an annual proficiency review of each TSO. This proficiency review is
accomplished through a recertification process. Federal law provides that a TSO
who does not demonstrate success on the annual proficiency review “may not
continue to be employed” as a TSO. 49 U.S.C. § 44935(f)(5).

Federal law does not allow your continued employment as a TSO upon failure to
meet the annual proficiency review requirements.

A copy of the Notice of Decision on Proposed Non-Disciplinary Removal dated December 4,
2012, states that Complainant’s employment was terminated for failure to meet annual
proficiency review requirements. The Notice further states that Complainant choose his test
dates after completing remediation and the Notice explains that Complainant was adequately
remediated between each examination.

3 PASS is abbreviated for Performance Accountability & Standards System.
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The record includes a copy of the Agency’s PASS 2012 User’s Guidance for Inability to Qualify
on Technical Proficiency Assessment which states that “if an employee does not qualify for a
PASS technical proficiency assessment after three attempts, the employee is subject to removal
procedures.”

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s race, sex, and color.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
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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

September 11, 2019
Date