Harvey D.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

2019005282 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harvey D.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019005282 Agency No. HS-TSA-00194-2018 DECISION On July 31, 2019, 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 July 1, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Supervisory Transportation Security Officer (STSO), SV-1802-G, at Salt Lake City International Airport in Salt Lake City, Utah. On December 28, 2017, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of disability when: 1. On September 26, 2017, the Assistant Federal Security Director for Mission Support (AFSD-MS) questioned a previous position listed on Complainant’s resume; 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. 2019005282 2 2. On September 26, 2017, the AFSD-MS informed Complainant that he had not been selected for a training manager position for which he had applied; 3. On October 3, 2017, a Transportation Security Manager (TSM) notified Complainant that he had been removed from all screening functions; 4. On October 26, 2017, the TSM issued Complainant a notice of proposed removal; and 5. On December 6, 2017, the Acting Assistant Federal Security Directory (AAFSD) issued Complainant a notice of removal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Perceived Disability: Complainant averred that he did not claim to have a disability but maintained that management perceived that he had a disability of some kind due to his use of Adderall, a medication for which he had a prescription. IR 66. However, the EEO investigator had asked each named official whether he or she had perceived Complainant to have a disability of some kind. All of them answered, “no.” IR 107, 117, 121, 124, 131-32, 136, 138, 142. When the EEO investigator why he believed that his physical condition was a motivating factor in the above-listed incidents, Complainant replied, “I don’t know if it was a factor, but it is certainly possible. IR 70, 72-75. Conduct Giving Rise to the Personnel Actions: When Complainant applied for the training management position described in incident (2), he reported on his resume that he worked for his brother’s company in Mesa, Arizona. The AFSD-MS stated that in performing due diligence for the position, he came to believe that Complainant had been less-than-truthful in his application. He did not believe Complainant’s explanation that he had teleworked from Salt Lake City during the time that he was working for his brother. IR 67-70, 105-06, 117-19, 153-60, 166. As to the nonselection for the training management position, the AFSD-MS and the AFSD-S both affirmed that although Complainant was well-qualified for the position and had made the certification list, they had decided not to interview him because of their concerns about his lack of candor in connection with his resume. IR 71, 108, 110-15, 120. Concerning Complainant’s removal from screening functions, the TSM and the AFSD-S averred that Complainant's actions caused them to question his integrity and his loyalty, which, in their opinion, made him a risk to the traveling public. TSM also stated that it was standard practice to remove a TSO from screening functions until the matter under investigation could be resolved. IR 72, 120, 137. Regarding the termination, the reason given for issuing and sustaining the proposed removal was Complainant's lack of candor in providing information on his resume in connection with his previous employment that was untruthful. IR 73-74, 127, 138-39, 143-44, 202-17, 317-42, 355-66. 2019005282 3 Decision of the Appellate Board: Complainant appealed the removal to the Appellate Board with the Agency’s Office of Professional Responsibility. On February 13, 2018, the Appellate Board issued a decision granting Complainant’s appeal, overturning the removal, and awarding Complainant back pay for the time that he was out of work. The Board found that management was unable to prove the lack-of-candor charge, noting that Complainant had merely exaggerated his previous employment and that management failed to follow up after receiving information from the reference. IR 372-73. CONTENTIONS ON APPEAL On appeal, Complainant contends that Agency officials committed perjury and have themselves displayed a lack of candor. Complainant argues that the Appellate Board acknowledged that the officials were flawed in their process and overturned the removal decision. Complainant states that he has proven his innocence and that management had discriminatory animus against him. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS Standard of Review 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 such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the AFSD- MS, the TSM, the AAFSD, and the other officials named in Complainant’s allegations articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). According to those officials, the resume inquiry, the reassignment from screening functions, the nonselection, and the removal stemmed from what they perceived to be Complainant’s lack of candor in describing previous employment on his resume. 2019005282 4 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). Here there is no question that the judgment of the AFSD-MS, the AFSD-S, the AAFSD, and the other officials involved in the various personnel action had been overruled by the Appellate Board. However, the fact that the Agency turned out to be wrong in its assessment of Complainant’s candor does not automatically result in a finding of pretext. See Jones v. U.S. Postal Serv., EEOC Appeal No. 0120090048 (Feb. 18, 2009) (demonstrating that the agency acted upon incorrect information is not sufficient to demonstrate discrimination). Complainant must still present evidence that these officials had regarded him as having a disability and had acted based upon unlawful consideration of that alleged disability. Complainant has not done either of those things. He has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor document which undermine or contradict the various officials’ explanations for the personnel actions in question or which cast doubt upon their veracity as witnesses. Moreover, Complainant himself had admitted that he was not even sure of whether the officials he named in his complaint harbored discriminatory animus towards him. We therefore agree with the Agency that the record is insufficient to support a finding of discrimination based upon perceived disability with regard to any of the incidents described in the instant complaint. Hostile Work Environment To the extent that Complainant is alleging that he was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 2019005282 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2019005282 6 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 November 16, 2020 Date