U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Long B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000383 Hearing No. 531-2019-00494X Agency No. HS-TSA-01425-2018 DECISION On October 20, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 15, 2020 final order concerning an 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 On October 16, 2016, Complainant was hired by the Agency as a Transportation Security Officer at the Baltimore-Washington International airport in Hanover, Maryland, subject to two-year trial period. On August 12, 2018, Complainant filed the instant formal complaint. Complainant alleged that the Agency discriminated against him based on race (African American) when: 1. On March 13, 2018, management instructed Complainant to attend remedial training; 2. On March 16, 2018, management issued Complainant a Notice of Termination letter; 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. 2021000383 2 3. On March 30, 2018, management removed Complainant’s screening functions; and 4. On April 21, 2018, management issued Complainant a Notice of Termination letter. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for a Decision Without a Hearing. Complainant did not respond to the Motion. The AJ issued a decision by summary judgment, finding no discrimination. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, 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, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions relating to disparate treatment. 2021000383 3 Claims 1 and 3 Regarding claims 1 and 3, Complainant alleged that on March 13, 2018, management instructed Complainant to attend remedial training and on March 30, 2018, management removed Complainant’s screening functions. As part of appropriate screening of passengers, TSA has a Field Evaluation Team that poses as passengers and covertly goes through the airport check points with prohibited items. On March 13, 2018, a Field Evaluation Team Member (“Tester”) successfully went through a BWI checkpoint with a prohibited item concealed in his groin area. At that time Complainant was monitoring the screening equipment - Advanced Imaging Technology (“AIT”) machine which was used to screen the Tester. After being ineffectively screened, the Tester called the Supervisory Transportation Security Officer (“STSO”) and notified him that he had just been screened by Complainant who failed to detect a prohibited item concealed in his groin area. In response, Complainant claimed that the AIT machine did not appropriately alarm for him to conduct a groin screening. Based on Complainant’s failure to locate the prohibited item on the Tester, he was instructed by STSO to attend remedial training before being allowed to resume performing the screening functions associated with the failed test. On March 30, 2018, Transportation Security Manager (“TSM”) notified Complainant that he was assigned to non-screening duties pending management’s completion of a fact-finding into his third screening failure on March 13, 2018. Claim 2 Regarding claim 2, Complainant alleged that on March 16, 2018, management issued Complainant a Termination During Trial Period letter. The Assistant Federal Security Director (“AFSD”) for Screening explained that the termination was issued because Complainant accepted shift trades from four different TSOs to take their shifts on February 24, 2018, affording three additional TSOs time off on that day, without any back fill, since he was already working for the fourth TSO. However, the Agency thereafter determined that the termination notice for this matter was inaccurate, the termination notice was rescinded, and Complainant was permitted to return to work in late March 2018. We note that this termination action is distinct from the action identified below, in claim 4. Claim 4 Regarding claim 4, Complainant alleged that on April 21, 2018, management issued him another Notice of Termination letter. The record contains a copy of Termination During Trial Period letter dated April 21, 2018. 2021000383 4 Therein, AFSD stated that Complainant’s inattention to detail and failure to follow applicable screening procedures caused him to fail three different field-testing programs. During a Headquarters Evaluation Test on January 30, 2018, Complainant failed to locate a test item. On March 13, 2018, Complainant failed a second Field Evaluation Test. Complainant received remediation after each failure. However, AFSD stated that CCTV footage revealed that Complainant again failed to conduct a proper pat down of another tester. AFSD determined that based on Complainant’s screening test failures, he did not meet the standards to which TSOs are held and a decision was made to terminate his Agency employment during his probationary period. The record evidence supports the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for the termination were a pretext designed to mask a discriminatory motivation. CONCLUSION We AFFIRM the Agency’s final order implementing the AJ’s decision by summary judgment because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2021000383 5 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). 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. 2021000383 6 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 February 14, 2022 Date
