[Redacted], Eldon P., 1 Complainant,v.Alejandro Majorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Mar 10, 2021

Appeal No. 2020000495 (E.E.O.C. Mar. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eldon P.,1 Complainant, v. Alejandro Majorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020000495 Hearing No. 480-2018-00684X Agency No. HS-TSA-01293-2017 DECISION On October 23, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 30, 2019 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisory Transportation Security Officer, SV-1802/G-Band, assigned at the Honolulu International (HNL) Airport in Honolulu, Hawaii. 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. 2020000495 2 On October 23, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on race, color, disability, age, and in reprisal for prior EEO activity when: 1. on or around February 18, 2015, Complainant alleged he was not selected for the position of Program Specialist, announced under Vacancy Announcement No. HNL- 15-864169, SV-0301, G-band; 2. from February 20, 2015 to present, Human Resources (HR) mishandled ad misplaced Complainant’s medical records; 3. from February 20, 2015 to on or around March 7, 2015, HR did not inform Complainant of the Continuation of Pay program, resulting in use of annual leave and sick leave; 4. on May 27, 2015, Complainant was not selected for the position of Master Security Training Instructor, announced under Vacancy Announcement No. HNL-15-896149, SV-1802, F-band; 5. on June 27, 2015, Complainant was not selected for the position of Program Specialist announced under Vacancy Announcement No. HNL-15-864169, SV-0301, G-band; 6. in around October 2015, management issued Complainant a Transportation Officer Performance System (TOPS) score of 3.0; 7. on or around November 16, 2015, Complainant was not selected for the position of Program Analyst, announced under Vacancy Announcement No. HNL-15-955077, SV-0343, G-band; 8. on or around March 3, 2016, Complainant was not selected for the position of Behavior Detection Officer, announced under Vacancy Announcement No. HNL-16- 992529, SV-1802, F-band; 9. in around June 2016, management rescinded an offer for Complainant to fill the position of Behavioral Detection Officer (BDO), Job Announcement (undisclosed); 10. from around November 2016 to February 7, 2017, management denied Complainant’s reasonable accommodation request for light duty, and denied Complainant’s request for a copy of the denial; 11. on February 25, 2017, management directed Complainant to change his timesheets from Family Medical Leave Act (FMLA) to Leave Without Pay (LWOP) for the time frame of November 17, 2016 to February 26, 2017; 2020000495 3 12. from February 25, 2017 to present, management removed Complainant’s duties and placed him in a LWOP status; 13. from February 25, 2017 to April 25, 2017, management denied Complainant’s reasonable accommodation request for light duty; 14. on February 25, 2017, Complainant became aware that HR stated that his FMLA expired because he did not re-submit his FMLA documentation in October 2016; 15. on February 27, 2017, HR sent an email that stated Complainant’s removal had been “agreed upon;” 16. from February 28, 2017 to March 6, 2017, management did not respond to Complainant’s email requests for the status of his submitted FMLA documentation and his return to work; 17. from March 22, 2017 to May 4, 2017, Complainant was told by management and HNL employees that he was being targeted by management, to include being marked for removal; 18. on March 22, 2017, Complainant became aware that management placed hi in an AWOL status from around February 26, 2017 to March 22, 2017; 19. on April 24, 2017, Complainant was subjected to a fitness for duty exam; 20. on May 28, 2017, Complainant became aware that management charged him 100- hours of AWOL around 2016; 21. on June 15, 2017, management refused to divulge who authorized Complainant for removal; and 22. on around December 29, 2017, Complainant was not selected for the position of Master Transportation Security Officer-Security Training Instructor, announced under Vacancy Announcement No. HNL-17-330838, SV-1802, F-band. After its 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 Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant did not respond to the motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency, finding no discrimination was established. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2020000495 4 The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2020000495 5 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020000495 6 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 March 10, 2021 Date