Jeremy H.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

2019005375 (E.E.O.C. Sep. 24, 2019)

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

Jeremy H.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 2019005375

Hearing No. 480-2018-00618X

Agency No. HS-TSA-00615-2018

DECISION

On August 7, 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 2, 2019, final decision concerning his 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Transportation Security Officer, SV-1802-G, at the Agency’s Los Angeles International Airport
in Los Angeles, California.

On February 2, 2018, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), color (Black), and sex (male)
when (1) on October 5, 2017, management issued him a Notice of Proposed Removal; and (2) on
October 27, 2017, management issued him a Notice of Decision on Proposed Removal and
terminated him from his position.

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.
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The Agency accepted the complaint and conducted an investigation, which produced the
following facts:

On October 5, 2017, the Agency issued Complainant a Notice of Proposed Removal for the
following charges: (1) lack of candor and (2) negligent performance of duty. With respect to the
charge of lack of candor, it provides seven specifications, all of which were similar in that they
alleged that on various dates between June 23, 2017 and July 15, 2017, Complainant made
entries in a key log indicating that he removed the Terminal 1 north gates security key from the
storage room where it was located at 0230 and returned it at 0230 or 0235, when the first time he
entered the storage room on each date was one to a few minutes later. Therefore, Complainant
knew that his log entries were less than candid, accurate or complete.

With respect to the charge of negligent performance of duty, the Notice of Proposed Removal
provides one specification. It provides that, on July 15, 2017, Complainant clocked in at 0236
and took the key to the north security gates at Terminal 1 from its box at approximately 0241. He
made an entry in a key log indicating that he had returned the north security gates key to the key
box at 0235. He did not return the key to the key box, and it was currently missing.

The Notice of Proposed Removal indicates that, prior to taking this action, the Deputy Assistant
Federal Security Director for Screening considered the nature and seriousness of Complainant’s
misconduct, his work and disciplinary history, the clarity with which he knew about the policies
he violated, the notoriety of the misconduct, his confidence in Complainant’s ability to perform
his duties, the potential for rehabilitation, any mitigating factors, the consistency of the penalty
with those imposed on similarly situated employees for the same or similar offenses, and the
Agency’s Table of Offenses and Penalties.

On October 30, 2017, the Agency issued Complainant a Notice of Decision on Proposed
Removal indicating the Agency had decided to remove Complainant from his position and from
Federal service, effective immediately, to promote the efficiency of the service. It provides that
the charges and specifications were those listed in the Notice of Proposed Removal and the
charges were proven by a preponderance of the evidence. It notes that Complainant had accepted
full responsibility for not entering the correct times on the key logs and losing the key, did not
contest the charges, and stated that his lack of candor was inadvertent and a product of an
inappropriate routine. With respect to the penalty, it provides that the same factors were
considered as were in the NOPR.

Agency personnel records show Complainant was removed from service on November 2, 2017
for lack of candor and negligent performance of duty.

Complainant identified other employees who differed as to race, color, and/or sex, who engaged
in similar acts of misconduct and were not penalized as harshly. Management attested that they
were unaware of these employees’ committing similar acts of misconduct.

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Management attested as to the charges and specifications as indicated in the Notices and
indicated that Complainant had previously been suspended for 14 days for falsification of time
and attendance.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew his request. Consequently, 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.

The instant appeal followed.

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”).

Complainant alleged the Agency treated him disparately in issuing a Notice of Proposed
Removal and a Notice of Decision on Proposed Removal that removed him from his position in
Federal service. A claim of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to
prevail, he must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802 at n.13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of
Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination with
respect to his claims, his claims ultimately fail, as we find that the Agency articulated legitimate,
non-discriminatory reasons for its actions.

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The Agency explained that Complainant was charged with lack of candor on 7 instances and
negligent performance of duty, relating to his making less than candid, accurate or complete
security key log entries and failing to return the security key to its box. The Agency further
explained that the charges were found to be substantiated and, upon consideration of the relevant
factors, removal was consistent with the penalty imposed on similarly situated employees for the
same or similar offenses. The Agency also considered its Table of Offenses and Penalties.
Therefore, we find that Complainant has not established by a preponderance of the evidence, that
the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful
discrimination or motivated by some unlawful discriminatory animus with respect to his claims
of disparate treatment.

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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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 (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

September 24, 2019
Date