Omer P.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Oct 5, 2018

0120172523 (E.E.O.C. Oct. 5, 2018)

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

Omer P.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120172523

Agency No. HSTSA267502016

DECISION

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 June 21, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer (TSO), SV-1802, at the Agency’s Buffalo Niagara International Airport facility
in Buffalo, New York. On May 15, 2016, the Agency was conditionally appointed to the position
with his permanent appointment to the TSO position contingent upon his successful completion of
required training. On May 30, 2016, Complainant began checkpoint certification training at the
TSA Academy in Glynco, Georgia. On June 9, 2016, Complainant was issued a failure notice
letter informing him that he had failed to receive a passing score on the Image Interpretation Test
(IIT). Complainant accepted the Agency’s offer to receive remediation training that same day. On
June 10, 2016, Complainant was re-tested. Complainant again failed to achieve a passing score.

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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On June 13, 2016, the Assistant Federal Security Director (AFSD) issued Complainant a letter
terminating his employment during his trial period effective immediately. The letter noted that
Complainant did not “demonstrate the necessary level of proficiency required of a TSO” as a result
of his failure of the classroom portion of the required training.

On November 22, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the basis of race (African-American) when, on June 13, 2016,
management terminated Complainant from his TSO position.

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). 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”).

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 (1973). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct.
2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Here, we find that assuming, arguendo, Complainant established a prima facie case of
discrimination, the Agency proffered legitimate, nondiscriminatory reasons for terminating
Complainant’s employment. Specifically, Complainant failed to pass the required written and
practical examinations during checkpoint certification training at the TSA Academy.
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The AFSD stated that the Agency requires that all new hires attend and pass a two-week, basic
screener training program at the TSA Academy. The AFSD explained that removal is standard
procedure for any TSO that fails any of the basic screening tests.

On June 9, 2016, Complainant failed to pass the IIT. According to the Training Instructor at the
TSA Academy, the IIT is an x-ray simulation test, which is automatically scored by a computer
program. The Training Instructor stated that since January 2015, the Test Administration Guide
only permits two attempts on the IIT. A TSO must obtain at least a 70 percent on identifying
threats and less than 50 percent for false alarms. If a TSO fails the test the first time, he/she is
permitted to retrain and then take the test a second time. The record indicates that Complainant
received remedial training and retook the test on June 10, 2016.

On appeal, Complainant contends that because the Agency provided Complainant’s practice test
results rather than his actual test results, there is no way to verify the validity of his failing.
However, by his own admission, Complainant failed the test twice. In addition, the record includes
a notice dated June 9, 2016, in which Complainant acknowledged that his performance on the IIT
did not meet minimum requirements and Complainant agreed to participate in remedial training.
Because Complainant failed to earn a passing score on his second attempt, Complainant was issued
a termination letter, which is consistent with the notice Complainant received on June 9, 2016,
when he agreed to participate in remedial training. Specifically, the notice informed Complainant
that “[i]f you do not pass on this attempt, you may not be afforded any additional training
opportunities at this time and your employment may be terminated.” Although Complainant
asserted that he should have been provided a third attempt at the IIT because he had witnessed
others do so, Complainant did not provide evidence of such. Moreover, Complainant has not
provided evidence showing management’s legitimate, nondiscriminatory reasons for his removal
were motivated by discriminatory animus.

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 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.
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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.
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.

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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 5, 2018_____
Date