U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jennifer B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000834 Hearing No. 480-2020-00177X Agency No. HS-TSA-01679-2019 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 14, 2020, final order concerning her 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 order finding no discrimination. BACKGROUND Complainant, an applicant for a Transportation Security Officer (TSO) position at the Los Angeles International Airport (LAX), in Los Angeles, California, filed a formal complaint alleging that she was subjected to discrimination based on race (African American), color (brown), sex (female), and in reprisal for prior EEO activity when: (1) on or around May 8, 2019, she was debarred from the position of Transportation Security Officer under vacancy announcement number (VAN) LAX-F19-F001; and (2) on or around August 8, 2019, she became aware that her application was stopped at the reference check point phase. After its investigation into the 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 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. 2021000834 2 Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The AJ informed the parties of her intent to issue a decision without a hearing. After considering both the Complainant’s and the Agency’s responses, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. According to the record, Complainant was formerly a TSO at LAX beginning on July 18, 2010, until she resigned on December 21, 2015. On May 6, 2019, Complainant applied online for the TSO position at LAX under VAN LAX-F19-F001. On May 8, 2019, she received an email from the Agency HR Service Center stating she did not meet the eligibility requirements for the position because she was a former Agency employee who was terminated or removed or had resigned while a proposed removal was pending. The email stated that based on the Agency’s Management Directive (MD) for 3 years from the effective date of separation, the Agency would not reemploy any former employee for several reasons, including cases where the former employee resigned after receiving a proposed removal letter. A1, the Director of Recruitment and Field Hiring Operations, at the Agency’s Headquarters in Arlington, Virginia, stated that Complainant’s application was stopped during the hiring process because there was a misinterpretation of question 2.10 regarding previous employment. The question asked if Complainant was separated due to misconduct on or after July 27, 2017,2 because Complainant was separated prior to that date, she should have answered “no.” She, however, answered, “yes.” A1 indicated, however, that Complainant’s application status was updated on July 18, 2019, and she was allowed to proceed in the process. She was contacted with instructions to schedule the Computer Based Test (CBT), which was the next step in the hiring process, and she was provided a contact number to call if she had any further questions or needed assistance to schedule her CBT. A1 stated that no members of LAX management had any role or influence regarding Complainant’s initial debarment. Regarding claim 2, Complainant stated that after she continued with the hiring process, she learned that her application was terminated at the reference check phase on or about August 8, 2019, when she received an email. Complainant was told that she did not meet the specific hiring requirements of LAX due to information received from her reference check. Complainant maintained that A2, the Administrative Officer at LAX was responsible for the reference check, and who she believes discriminated against her. A1 stated that after Complainant’s application status was updated and she proceeded in the competitive hiring process, she passed the CBT, and proceeded to the Airport Assessment (AA). As part of the AA scheduling process, Complainant was identified to be a former employee. 2 Effective July 27, 2017, the Agency enacted a new policy concerning the debarment of applicants. 2021000834 3 Anytime a former employee was identified, A1 stated a reference check was sent to the former employee’s duty station. A1 indicated that, in Complainant’s case, LAX was contacted and A2 provided an unfavorable reference check. Complainant’s application was stopped at that point. A2 stated that, on August 2, 2019, LAX received a reference check asking if Complainant was eligible for re-hire. She indicated that, per the Agency’s hiring policy, LAX reviewed candidates for any previous disciplinary actions. If any disciplinary actions were discovered, the information was recorded on the Airport’s Decline spreadsheet, and emailed back to the requestor. In this case, Complainant’s files were reviewed, and information was discovered that she was removed from Federal service on December 21, 2015. A2 completed the Decline spreadsheet and submitted it for review and approval. According to A2, on September 10, 2019, she received an email notifying her that there had been a settlement agreement with Complainant in 2017, that resulted in changing her reason for leaving the Agency from removal to resignation. A2 stated that, on September 10, 2019, she spoke with LAX Legal Counsel who informed her that based on the settlement agreement, the entire file, including the Notice of Proposed Removal, should have been expunged. A2 stated that, in reviewing Complainant’s settlement agreement signed on December 9, 2017, it indicated that she voluntarily resigned from her position as a TSO on December 21, 2015, for personal reasons. According to A2, if Complainant’s file had been updated when the settlement agreement was signed there would have been no reason to recommend that Complainant not be re-hired. Finally, she noted that, when a reference check was sent to the airport, it only had the name of the former employee, sometimes the three-letter airport code of the last airport where the candidate worked, and the dates of prior employment. She denied that Complainant’s race, color, sex, or prior EEO activity were factors in her actions, and she only became aware of Complainant’s settlement agreement regarding Complainant’s removal in 2015, on September 10, 2019. The AJ found that Complainant did not establish that there was a genuine issue of material fact in dispute regarding A1’s explanation for her initial debarment, because there was no dispute that Complainant answered Question No. 2.10 incorrectly by saying, “yes.” As the AJ noted, Complainant herself admitted that she answered it incorrectly. Regarding claim 2, the AJ noted A2’s statement that their records indicated that Complainant was removed from the Agency on December 21, 2015. A2, according to the AJ, informed the Human Resources staff handling Complainant’s application that she should be declined. The AJ did not find that Complainant’s contention that her disciplinary record should have been expunged pursuant to the settlement agreement indicated pretext. The AJ noted A2’s statement that the HR systems did not indicate that Complainant’s removal had been rescinded pursuant to a settlement agreement; she was not aware of the settlement agreement until after she declined Complainant’s application; and if the system did not have information regarding Complainant’s removal, she would have “cleared” Complainant’s application. 2021000834 4 The AJ also noted Complainant’s assertion that A2’s reasons were pretext because even if she had not signed the settlement agreement, and her record properly reflected her removal, the three-year debarment period had passed, and she should not have been debarred. A2, the AJ noted, indicated that the Agency is not required to re-hire a former employee who left and who was not in good standing, regardless of the debarment directive. The AJ found no Agency policy or directive in the record stating that the Agency would re-hire employees who have been removed after 3 years have passed since their removal. Therefore, that AJ found no evidence establishing a genuine issue of material fact that Complainant’s race, color, sex or prior EEO activity play any role in this matter. ANALYSIS AND FINDINGS 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. As for claim 2, the issue before us is not whether the Agency violated its settlement agreement with Complainant. The issue is whether Complainant established that there is a genuine issue of material fact in dispute indicating that discriminatory animus played a role in the termination of her application process. As with claim 1, we find that even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.3 3 When a party moves for summary judgment, the non-moving party’s opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. Fernandes v. USPS, EEOC Appeal No. 0120113904 (Jul. 25, 2013) (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)). 2021000834 5 CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, 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 finding no discrimination. 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. 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. 2021000834 6 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. 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 9, 2021 Date