Florentino S.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Apr 27, 2017

0120151920 (E.E.O.C. Apr. 27, 2017)

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

Florentino S.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120151920

Hearing No. 410-2014-00334X

Agency No. HS-TSA-02284-2013

DECISION

Complainant filed an appeal from the Agency’s final order dated April 28, 2015, finding no
discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

The record indicates that Complainant filed the instant complaint on December 30, 2013,
alleging discrimination in reprisal for prior EEO activity when:

(1) On September 18, 2013, he was notified that he was not qualified for Job Vacancy
Announcement No. ATL-13-652151; and

(2) On September 18, 2013, he was notified that he was not qualified for Job Vacancy
Announcement No. ATL-13-652163.

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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Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On April 22,
2015, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that at the relevant time, Complainant
was employed by the Agency as a part-time D-Band Transportation Security Officer (TSO)
working 25 hours per week at Hartsfield Atlanta International Airport in Atlanta, Georgia. He
also had another part-time security officer job at a private company.

With regard to claim (1), Complainant claimed that he applied to the Supervisory TSO, SV-
1802-G Pay Band position at issue but was not selected. The Agency Human Resources (HR)
Specialist indicated that Complainant did not qualify for the position because he failed to
demonstrate at least one year of specialized experience in or related to the duties of a TSO or
Lead TSO at the E Band level or above (GS-8). The HR Specialist stated that at the time of
his application, Complainant had only two months experience at E Band level. The HR
Specialist indicated that the Agency ultimately made no selections from the Job Vacancy
Announcement at issue.

With regard to claim (2), Complainant claimed that he applied to the Master TSO-Behavior
Detection Officer (BDO), SV-1802-F Pay Band position but was not selected. The HR
Specialist indicated that although Complainant met the minimum qualifications for the position,
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he did not make the certificate of eligibles due to his low score on the self-assessment
questionnaire. Specifically, the HR Specialist stated that the lowest score on the certificate
listing was 96.84 and Complainant’s score was 90.81 (6 points lower) because he did not
answer all of the questions. The Agency stated that more than 100 applicants scored higher
than Complainant and 27 candidates, who received the scores ranged from 96.84 to 100.00,
were placed on the certificate of eligibles and referred to the selecting official for
consideration.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for not selecting Complainant for the positions.
Furthermore, we find that Complainant failed to show that there were any similarly situated
employees not in his protected groups who were treated differently under similar
circumstances. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s actions were motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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 27, 2017
Date