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

Equal Employment Opportunity Commission

Apr 16, 2019

0120180431 (E.E.O.C. Apr. 16, 2019)

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

Kerry B.,1
Complainant,

v.

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

Appeal No. 0120180431

Agency No. HSTSA009562017

DECISION

On October 23, 2017, 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
September 6, 2017, final decision concerning his 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 was an applicant for employment
at the Luis Munoz Marin International Airport facility in San Juan, Puerto Rico.

On March 14, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age (over 40) and reprisal for prior protected EEO activity under the
Age Discrimination in Employment Act of 1967 when:

1. On November 21, 2016, management did not select him for the Transportation Security
Inspector, Explosive Detection Canine Handler (TSI) position advertised under
Vacancy Announcement Number (VAN) SJU-16-170472; and

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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2. On February 15, 2017, management did not select him for the TSI position advertised
under VAN SJU-16-185804.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

On September 6, 2017, the Agency issued a decision, finding no discrimination. In issuing the
decision, the Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely
contact with an EEO counselor. As for claim (2), the Agency cited Complainant’s past disciplinary
record as the basis for his nonselection. The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

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”).

On appeal, Complainant contends that the Federal Security Director acted with discriminatory and
retaliatory animus when he directed the selecting official to refrain from selecting Complainant
for the vacancy because of his prior disciplinary record. In this regard, Complainant asserts that
the Agency had no right to consider his disciplinary record because the Agency had previously
agreed to dismiss and/or eliminate the prior charges of misconduct.2 He also asserts that the
Agency violated its own handbook by considering disciplinary actions that were taken more than
one year prior to the selection date.

Initially, we note that Complainant has not challenged the Agency’s decision to procedurally
dismiss claim (1). Therefore, we limit our analysis to the merits of claim (2).

To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2 In the previous removal action, Complainant was charged with misusing a government vehicle,
falsifying time and attendance records, taking unapproved leave, displaying lack of candor, and
making inappropriate comments/threats to supervisors and other staff members.

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First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993). Where the Agency has articulated a legitimate,
nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly
to the third step of the McDonnell Douglas analysis. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-14 (1983).

Assuming arguendo that Complainant established a prima facie case of discrimination on the
alleged bases, we note that the Agency has articulated legitimate, nondiscriminatory reasons for
its action. As reflected in the investigative record, the Agency explained that the Federal Security
Director sought to dissuade the selecting official from rehiring Complainant because Complainant
had an extensive disciplinary record while employed at the Agency.

Complainant now bears the burden of establishing that the Agency's stated reasons were merely a
pretext for discrimination. Complainant v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec.
6, 1996). In nonselection cases, Complainant can demonstrate pretext by showing that his
qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dep’t of
Veterans Affairs, EEOC Appeal No. 0120141712 (Dec. 3, 2015). Other indicators of pretext
include discriminatory statements or past personal treatment attributable to those responsible for
the personnel action that led to the filing of the complaint, comparative or statistical data revealing
differences in treatment across various protected-group lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC
Appeal No. 0120141697 (Nov. 12, 2015).

After careful consideration of the evidence of record, including Complainant’s contentions on
appeal, we find no persuasive evidence that Complainant was subjected to discrimination based
on his age and/or in reprisal for prior protected EEO activity.3 The Commission has long held that
agencies have broad discretion to set policies and carry out personnel decisions and should not be
second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 259; Complainant v. Dep't of the Treasury, EEOC
Request No. 05940906 (January 16, 1997). Given the facts in this case, we agree with the Agency
that the Federal Security Director and selecting official did not act with discriminatory or
retaliatory animus when they considered Complainant’s prior disciplinary history during the
selection process.

3 Though Complainant failed to provide examples of his participation in prior protected EEO
activity, we assume for the purposes our analysis that Complainant made such showing.
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In reaching this conclusion, we considered Complainant’s contention that the disciplinary action
at issue had been eliminated by mutual agreement of the parties; however, the record clearly shows
that the disciplinary action was neither dismissed nor eliminated, but rather reduced in severity
from removal to a demotion and suspension. To the extent that the Agency violated its own
handbook and/or the settlement agreement (not an EEO settlement agreement) by considering
disciplinary actions that were taken more than one year prior to the selection date, we find no
causal link between Agency’s actions and Complainant’s protected characteristics.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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

April 16, 2019
Date