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

Equal Employment Opportunity Commission

Jul 2, 2015

01-2013-2642-0500 (E.E.O.C. Jul. 2, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120132642

Hearing No. 450-2012-00264X

Agency No. HS-TSA-01904-2011

DECISION
On July 31, 2013, Complainant filed an appeal from the Agency’s June 5, 2013, 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. and 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 order finding no discrimination.

BACKGROUND
Complainant began working for the Agency at the Dallas Fort Worth (DFW) International
Airport as a Lead Transportation Security Officer (LTSO) on September 1, 2002. In March
2009, she transferred to Juneau, Alaska as a LTSO, F Band pay. In late 2010, Complainant
registered with the National Volunteer Transfer Program to obtain a transfer back to DFW.
On December 14, 2010, the Agency made Complainant a tentative offer for employment as a
full-time Transportation Security Officer (TSO), E Band pay. On December 15, 2010,
Complainant accepted the offer. In January 2011 Complainant transferred back to DFW.
Person A, the Supervisory Transportation Security Officer, was Complainant’s supervisor
when she transferred back to DFW.

When she returned to DFW in January 2011, Complainant reported to the Central Service
Center and met with the Master Scheduler at DFW. Complainant told the Master Scheduler
0120132642

2
that her name was listed on the manning sheet as a LTSO.1

The Master Scheduler told
Complainant that her name had never been taken out of the system. Complainant then went to
her scheduled checkpoint and reported to Person A. Person A never told Complainant that she
was not a LTSO, Person A had her on the schedule as a LTSO, and Person A assigned
Complainant work as a LTSO. Complainant wore her LTSO uniform and worked as a LTSO
until May 2011. Complainant believed that there was a shortage of female LTSOs at DFW
because she had to travel all over the airport to conduct resolution pat downs on female
passengers. Complainant spoke with Person B, a Human Resources Specialist, on May 25,
2011, with regard to the fact that she was being paid on the TSO (E-Band) scale instead of the
LTSO (F-Band) while performing LTSO duties. Within twenty-four hours of this
conversation, Complainant’s schedule, the manning sheet, and her uniform were changed to a
TSO. Thereafter, Complainant was instructed that she was only to perform TSO duties.
On December 16, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), and age (over
40) when:

1. From January 31, 2011, to May 26, 2011, at Dallas-Fort Worth International
Airport, Dallas, Texas, Complainant performed the duties of a Lead Transportation
Security Officer (LTSO) while being paid at the rate of a Transportation Security
Officer (TSO); and

2. From May 27, 2011, to the present, Complainant was required to be reduced to the
grade of Transportation Security Officer (TSO) as a condition of employment while
other similarly situated TSOs were allowed to maintain their status as LTSOs.

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 timely requested a hearing
and the AJ held a hearing on April 11, 2013. The AJ issued a decision on May 14, 2013.

In her decision, the AJ found Complainant was a member of the protected classes based on her
race, gender and age. The AJ stated Complainant was also qualified for the LTSO position.
The AJ found that because Complainant had to take a downgrade from LTSO to TSO to
transfer to DFW, she suffered an adverse employment action even though her pay was not
reduced. However, the AJ determined Complainant failed to show that she was treated
differently than similarly situated individuals outside of her protected class.

1 The manning sheet is an extract from the actual schedule. At the time, shift bids were six-
month bid periods. For every day within that six-month period an employee had a schedule,
including leave and overtime. All that information was entered in the schedule and was
converted into a manning sheet for every day of the year. The manning sheets were auto
generated from schedule data.
0120132642

3
The AJ recognized the issue in the case was not the January 2011 transfer itself since such a
claim was clearly untimely pursuant to 29 C.F.R. §1614.105(a). Rather, the AJ noted the
issue was whether from January 31, 2011, to May 26, 2011, Complainant performed the duties
of a LTSO while being paid at the rate of a TSO. The AJ noted that claim was also arguably
untimely pursuant to EEO regulations. However, the AJ stated that even assuming
Complainant’s first claim was timely, Complainant did not provide evidence of a similarly
situated TSO who accepted a transfer to DFW (as a TSO) who was incorrectly listed as a
LTSO who was treated differently than Complainant. The AJ noted that Complainant was
admittedly aware of the errors from her first day at DFW in January 2011. However, the AJ
found that no similarly situated individuals, transferred as a TSO and knowingly worked as a
LTSO, were treated differently than Complainant.

The AJ noted that Complainant’s second claim was that from May 27, 2011, to present, she
was required to be reduced to the grade of TSO as a condition of employment while other
similarly situated TSOs were allowed to maintain their status as LTSOs. The AJ determined
that Complainant also failed to show any similarly situated individuals who were treated
differently with regard to her second claim. The AJ noted the record established that
Comparative X (White; female; over 40), who transferred to DFW shortly before
Complainant, was also required to take a downgrade from LTSO to TSO in order to take a
position at DFW. The AJ determined the evidence did not establish that there were open
LTSO positions at DFW either in October 2010, when the comparative’s transfer was
approved or in December 2010, when Complainant’s transfer was approved.

The AJ found the Agency articulated legitimate, nondiscriminatory reasons for its actions. The
AJ noted that in an attempt to prove pretext, Complainant spent considerable time discussing
transfers from the 2007 to 2012 time period. However, the AJ noted the testimony showed
that transfers to the LTSO positions during this time depended on the staffing numbers. The
AJ determined that Complainant offered no evidence that the staffing numbers were used as a
pretext to not allow Black women over forty the opportunity to transfer as LTSOs. The AJ
noted that Complainant admitted that within 24 hours of bringing the pay issue to the Agency’s
attention, the situation was corrected. The AJ noted that Complainant knew she accepted a
downgrade to TSO to return to DFW and could have corrected the problem on her first day at
DFW and did not do so. The AJ found that while there were errors with regard to processing
Complainant’s transfer in the matter, Complainant failed to establish these errors were pretext
for discrimination.

The Agency subsequently issued a final order on June 5, 2013. The Agency’s final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
0120132642

4
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
After a careful review of the record, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies, and laws. We find the
record in the present case fully developed. We note on appeal Complainant does not challenge
the AJ’s definition of the claims at issue. We discern no basis to disturb the AJ's decision. In
the present case, the record supports the AJ’s finding that the Agency presented legitimate,
nondiscriminatory reasons for its actions. Complainant failed to show that the Agency’s
actions were a pretext for prohibited discrimination.

CONCLUSION
Accordingly, the Agency’ final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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
0120132642

5
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).
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 2, 2015