[Redacted], Bill A., 1 Complainant,v.Christine Wormuth, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Dec 12, 2022

Appeal No. 2022000465 (E.E.O.C. Dec. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bill A.,1 Complainant, v. Christine Wormuth, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022000465 Agency No. HS-TSA-01891-2020 DECISION On November 2, 2021, 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 October 5, 2021 final decision concerning his equal employment opportunity (EEO) complaint. Complainant alleged 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. and 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 worked as a Program Manager, SV-0340-J-Band, at the Agency’s TSA Headquarters in Springfield, Virginia. On October 30, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Asian/Indian), age (77), and in reprisal for prior protected EEO activity when on August 1, 2020, the Agency did not select him for the Supervisory Program Specialist (SPS) position advertised under Vacancy Announcement No. (VAN) HQ-OS-20-7254-1 (OS). 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. 2022000465 2 The record shows that the Agency advertised for the Supervisory Program Specialist position through USAJobs. Complainant timely applied and his name was on the Certificate of Eligibles. Report of Investigation (ROI), at 42-43, 111, 116-117, 119-137 and 225. Complainant was interviewed virtually via WebEx, by a three-member panel. ROI at 43, 187, 197, 205, 213 and 216-217. One of the Panel Members acknowledged that he was aware of Complainant’s prior EEO activity. ROI at 53. The record shows that the Panel assessed Complainant with an interview score of 10 and the Selectee received an interview score of 29. Of the 11 interviewed candidates, Complainant was ranked eighth. ROI at 160. The selectee ranked second. ROI at 171, 17. Complainant was not among the top-ranked candidates after his interview with the Panel, so he was not afforded a second interview or further consideration. ROI at 56. The Selecting Official was the Chief of Staff (Caucasian: YOB: 1981, EEO activity not stated). (Selecting Official). The Selecting Official stated she was not aware of Complainant’s national origin, age, or prior EEO activity. Complainant disputed this fact. Complainant stated that he had been interviewed by the Selecting Official when he interviewed for an Executive Advisor position in 2019, when she was a panel member for the interview. Complainant stated that she also knew his age and that he had prior EEO complaints. On July 14, 2020, the Selecting Official selected the Selectee (Caucasian, American, YOB 1981, no prior EEO activity). ROI at 89-90, 222, and 356. The Selecting Official stated she based her final selection decision on the resumes, interview panel scores, and rankings. She stated that Complainant was not selected as she did not believe that he had the Operations Support experience, skills, and background required for the position as compared to the Selectee. ROI at 365. The Selecting Official acknowledged that she informally selected the selectee and reached out to the Selectee’s supervisor, prior to the formal offer being extended to ask if she could be detailed in the position while awaiting the Human Resources’ processing. The selectee’s supervisor signed and approved the detail on July 28, 2020. Complainant claimed that the Selectee was pre-selected and was a friend of the Selecting Official. He believes the Agency failed to give due consideration to his experience and years of service at the higher-level K Band. Complainant contends he served in the position previously. Complainant averred that he held a K Band position for 16 years until he “was downgraded in 2014, with a sham reorganization that resulted in the Deputy Administrator’s removal.” ROI at 42. Complainant claimed that he had over 25 years of experience in supporting aviation operations in implementing cost effective technology and process solutions, which he asserts was well articulated in his interview on June 17, 2020. He had a feedback session on August 11, 2020, and another feedback session on January 19, 2021. Both pertained to the interview and not his non-selection. ROI at 49-50. 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). 2022000465 3 In the decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination or reprisal as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that based on his experience with the Agency, he observed that minorities, especially Asian Indians, are discriminated against despite having superior qualifications and relevant experience. Complainant referenced a Blue-Ribbon Panel Report, which concluded that the Agency’s HR selection process was deeply flawed and lacking transparency. Complainant claims that discrimination was confirmed by an Agency employee survey, HR, and the Agency Ombudsman in November 2019. He maintains that this record lacks sufficient supporting documentation regarding the selection process and contends the Selecting Official was prejudiced against him due to his national origin, age and prior EEO activity. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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). 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. We will assume arguendo that Complainant established a prima facie case of discrimination and reprisal. In this case, however, the Agency articulated legitimate, nondiscriminatory reasons for its actions. 2022000465 4 Complainant was deemed not as well qualified for the position as the selectee, who was also determined to have performed better during the interviews and was deemed a better match by the Selecting Official. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). We recognize that Complainant disputes that the selectee was actually better qualified, and he questions why the record does not contain the rankings for the second set of interviews. In this case, however, there is insufficient evidence to establish that the stated reasons were untrue or due to Complainant’s national origin, age or any EEO activity. First, since Complainant was not referred for a second interview, the rankings for the second set of interviews is not relevant regarding Complainant’s nonselection. Further, in the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's managerial decisions. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). Furthermore, to the extent that Complainant believes that preselection occurred in the position at issue, we note that Complainant has not shown that any such preselection was motivated by discriminatory or retaliatory animus. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). As Complainant did not request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in the Agency's actions. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision for the reasons stated herein. 2022000465 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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). 2022000465 6 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 December 12, 2022 Date