Brook V.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Oct 20, 2016

0120141236 (E.E.O.C. Oct. 20, 2016)

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

Brook V.,1
Complainant,

v.

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

Appeal No. 0120141236

Agency No. HS-TSA-00619-2013

DECISION

Complainant timely appeals to the Commission from the Agency’s final decision dated
December 13, 2013, finding no discrimination concerning her 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. For the following reasons, we AFFIRM the Agency’s final
decision finding no discrimination.

BACKGROUND

In her complaint, filed on April 15, 2013, Complainant alleged discrimination based on race
(White), sex (female)2, and age (over 40) when on November 29, 2012, the Agency notified
her that she was not selected for a Supervisory Transportation Security Officer (STSO) position
announced under Vacancy Announcement Number (VAN) ORD-12-533633. After completion
of the investigation of the complaint, Complainant requested a final Agency decision without a
hearing. The Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.

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.
2 We note that Complainant subsequently withdrew the allegation of discrimination based on
her sex.
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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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. At the time of the alleged incident, Complainant was
employed as a Lead TSO at Agency’s Chicago O’Hara International Airport in Chicago,
Illinois. Complainant indicated that in September, 2012, she applied for the VAN at issue but
was not selected.

The Deputy Assistant Federal Security Director (DAFSD) indicated that Complainant was one
of the best qualified candidates and was referred for an interview. The DAFSD stated that he
convened three interview panelists, who interviewed 39 candidates, including Complainant.
The interview panelists indicated that they asked the candidates, including Complainant, the
same six core competency questions, i.e., attention to detail, critical thinking, coaching and
mentoring, command presence, decisiveness, and incident management; they scored their
responses, including their oral communications, during the interview; Complainant’s interview
score was 26 out 35; and she ranked 24th place out of 39 candidates whose interview scores
ranged from 9 to 34. The interview panelists indicated that although Complainant had
impressive work experience based on her resume, she did not interview well; her responses
lacked detail, thorough explanations to their questions; and sometimes she had trouble
conveying her thoughts.

The DAFSD indicated that he provided the interview score information and disciplinary action
on the interviewed candidates to his AFSD. The DAFSD stated that the cut off interview score
was 30 and he referred the top 10 candidates (of the ten, three were female, four were White,
and one was over age 40) to his AFSD. The DAFSD stated that although there were 11
candidates scoring 30 or higher for their interviews, one candidate was disqualified from the
selection process due to a recent disciplinary action. The AFSD indicated that he received the
interview information from the DAFSD and after considering the interview score and resume,
disciplinary record, and supervisory feedback, he decided to refer the same ten candidates
referred by the DAFSD to his FSD who ultimately selected the ten for the VAN at issue.

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After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed
to show that her qualifications for the position were plainly superior to the selectees’
qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s
action was motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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
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 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. The requests 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 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).

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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

October 20, 2016
Date