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

Equal Employment Opportunity Commission

Sep 26, 2019

2019003537 (E.E.O.C. Sep. 26, 2019)

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

Pamila R.,1
Complainant,

v.

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

Appeal No. 2019003537

Agency No. HSTSA010102018

DECISION

On December 23, 2018, 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
December 10, 2018, final decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Inspector, SV-1801, H Band, at the Agency’s Eppley Field Omaha Airport in Omaha,
Nebraska.

On March 3, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when, on January 18, 2018, Complainant became aware
that, on November 3, 2016, management excluded her from receiving advance notice, given to
other employees, of an upcoming promotion opportunity, under vacancy announcement number
OA-16-206901.

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 11, 2016, Complainant applied to transfer from the Eppley Field Omaha Airport in
Omaha, Nebraska to Sioux Falls Regional Airport in Sioux Falls, South Dakota.

Complainant alleged that, on November 3, 2016, the Supervisory Transportation Security
Inspector (STSI) informed Complainant’s co-worker (female) that there would soon be an
opening for an I Band position, the position at issue in the complaint. Complainant further
alleged that the STSI and this co-worker discussed this upcoming vacancy on November 9 and
10, 2016. Emails from the female co-worker to Complainant, dated January 18 and 31, 2018,
support these allegations.

An email from the Assistant Federal Security Director – Inspections (AFSD-I) to several
employees, including Complainant, dated November 9, 2016, provides that the I-Band position at
issue would be advertised on USA Jobs in the very near future.

On November 10, 2016, Complainant received approval to transfer and she accepted the position
on that same day.

The Agency officially posted the vacancy announcement for the position at issue as open from
November 14 to 23, 2016.

Complainant did not apply for the I Band position at issue. She attested that she did not apply
because the transfer form indicated that if she failed to report to Sioux Falls Airport, she could be
subject to discipline up to and including removal. This led her to believe that she could not apply
for the position.

As mentioned, Complainant attested that a female co-worker informed her that she and others
had received notice in advance of the vacancy announcement. Complainant alleged that AFSD-I
deliberately withheld posting the vacancy until after Complainant had accepted the transfer
because he did not like her and women in general. Complainant attested that, had she known of
the upcoming vacancy announcement, she would not have signed the transfer and would have
applied for the position.

A male employee was selected for the position.

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). 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 her to discrimination as alleged.

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The instant appeal followed. On appeal, Complainant acknowledged several findings of fact in
the Agency’s final decision, but argues that: (1) while the Agency stated that she completed a
Voluntary Transfer Request, they did not state that it had to be signed by the AFSD-I, which
gave him knowledge of her desire to transfer; and (2) while the Agency stated that she and 13
other employees received an email from AFSD-I on November 9, 2016, indicating the additional
I Band position would be coming available, the Agency did not have evidence that she received
or read the email and the Agency could have confirmed that November 9, 2016 was her day off
and, therefore, she would not have read the email that day.

Complainant also states that AFSD-I has since separated from service, amid negative reports and
findings of misconduct. She asserts that the fact that a female co-worker was given the advanced
notice fails to establish that she was not treated less favorably because of her sex. She reiterates
her alleged facts at issue and claims that AFSD-I manipulated the system to keep her from
applying and did not hire the other female employee.

The Agency did not submit a statement or brief in response to Complainant’s appeal.

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 that the Agency treated her disparately in excluding her from advance
notice of an upcoming promotional opportunity, such that she committed herself to a transfer,
rather than apply for the position at issue. 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, she 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; 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).

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Even if we assume that Complainant established a prima facie case of discrimination, her claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that AFSD-1 did not give anyone advanced notice of the
vacancy announcement prior to its posting on USA Jobs. The record shows that Complainant
was given notice of the upcoming vacancy along with her co-workers in the November 9, 2016
email. We note that Complainant asserts that she was not at work on November 9, 2016 and,
therefore, did not receive that email on that date. Nevertheless, the record shows that she was
included in the group email advising employees of the upcoming opportunity. Insofar as
Complainant’s female co-worker indicated that she was told prior to the email that there would
be a vacancy announcement for the position at issue, we do not find this sufficient to establish
that Complainant was disadvantaged in the hiring process on the basis of sex. 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.

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.
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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. 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 26, 2019
Date