U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lan K.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022001890 Hearing No. 410-2021-00538X Agency No. HS-TSA-00825-2021 DECISION On February 23, 2022, 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 January 28, 2022, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO) at the Agency’s Hartsfield-Jackson International Airport in Atlanta, Georgia. Report of Investigation (ROI) at 40. On May 18, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (55) when, on February 26, 2021, management did not select Complainant for the position of Lead Transportation Security Officer (LTSO). 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. 2022001890 2 Complainant reported that she became aware of the LTSO position through USA Jobs, the government hiring website, and applied sometime in January 2021. Id. Later, on an unidentified date, she was informed via email that she was being referred to the Selecting Official. Id. Complainant was not interviewed, nor was she aware of anyone that was. Id. She explained that no one was selected for the position because it was ultimately cancelled. Id. at 41. However, she also explained that on a subsequent date she saw an LTSO selection announcement posted in the breakroom. Id. She reported that she applied for the LTSO position a total of six times. Id. As to her qualifications, she explained that she trained new hires, had a good attendance record, received positive performance reviews, has been placed on details, and served as an Acting LTSO. Id. The Selecting Official explained that in 2021, there were three vacancies for LTSO positions. Id. at 82. Nevertheless, after meeting with the Administrative Officer, he was informed that there were approximately nine current LTSO's on the transfer list and that the list included individuals who would like to be transferred to the Atlanta division, the location where Complainant worked and applied for the LTSO position. Id. As such, the Selecting Official chose to cancel the vacancy announcement so that individuals from the transfer list could be selected. Id. At the conclusion of the investigation, 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 Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request and remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the Agency’s final decision, the Agency found that management articulated a legitimate nondiscriminatory reason for its action, and Complainant failed to demonstrate that this reasoning was pretext for discrimination. CONTENTIONS ON APPEAL On appeal, Complainant argues that an investigator needs to uncover why the position was originally posted, and the ages and experience levels of the transfers who were selected for LTSO positions. She also asserts that, while the Selecting Official stated there were only three positions, she believes there were four open positions. Overall, she believes age discrimination is involved because everyone who has received a position of LTSO was under 40 years of age. Complainant also provides statements from two other TSO's who allege that they have not been promoted multiple times and are also over the age of 40. In response, the Agency argues that Complainant failed to present a prima facie case of disparate treatment with regard to her non-selection based on her age. The Agency contends that she cannot show that the official who cancelled the vacancy announcement, resulting in her non- selection, was aware of her membership in a protected class. Moreover, the Agency argues that Complainant cannot show pretext. 2022001890 3 ANALYSIS AND FINDINGS 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”). Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248. 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the LTSO positions. In this regard, the Selecting Official explained that he chose to cancel the vacancy announcement so that current LTSO’s from a transfer list could be selected, instead. The burden shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In non-selection cases such as failure to hire or to promote, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectees. Hung P. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). We note that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). The Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Burdine, supra, 450 U.S. at 259.In the present case, Complainant has not presented evidence nor arguments which indicate that the Agency’s reasons were pretextual. 2022001890 4 There were no other selectees or interviews conducted, as the position was ultimately subject to a different process wherein the Selecting Official transferred LTSOs into the positions at issue. As noted above, Agencies have broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). While Complainant may have subjective disagreements with the Agency’s ultimate selection, she has not effectively shown any discriminatory animus underlying her ultimate non-selection. We find that Complainant has failed to prove that the Agency's reasons for its actions were a pretext to mask discrimination based on her protected class or show that the Agency was motivated by discriminatory animus. Therefore, we find that the Agency’s final decision was proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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 2022001890 5 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. 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. 2022001890 6 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 May 5, 2022 Date
