U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Devon H.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120131083 Hearing No. 430-2009-00435X Agency No. HS-06-TSA-005282 DECISION Complainant timely filed an appeal from the Agency's December 10, 2012, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final order. ISSUES PRESENTED The issues presented are: 1) whether the Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) reached the correct legal conclusions; and 2) whether substantial evidence supports the AJ's conclusion that Complainant did not prove that he was subjected to reprisal and disability discrimination when his international assignment was changed, he was denied a promotion, he was denied an in-band pay increase, and he was denied opportunities for leadership/supervisory training. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal (FAM) at the Agency's Charlotte, North Carolina Field Office. Complainant has been a FAM since June 2, 2002. In addition to this complaint, Complainant has filed several other EEO complaints. Specifically, Complainant filed Agency Number ICE-05-E010 in October 2004 and Agency Number HS-05-TSA-002222 in February 2006. Subsequently, Complainant also filed additional complaints (Agency Numbers HS-TSA-01276-2010, HS-10-TSA-001204, HS-08-TSA-008579) that were processed contemporaneously with the instant complaint. On November 20, 2006, Complainant filed this EEO complaint. The complaint alleged that the Agency discriminated against Complainant on the basis of disability2 (learning disability/Dyslexia and Eustachian tube dysfunction) and in reprisal for prior protected EEO activity when: 1. On August 10, 2006, TSA changed Complainant's assignment on an international mission. As a result of this change, Complainant lost compensation, which included approximately two hours of overtime pay; 2. On September 1, 2006, Complainant became aware that the Agency did not select him for a J-Band3 supervisory Federal Air Marshal position, which was advertised under Vacancy Announcement Number FAMS-ALL-06-0030 at the Charlotte Field Office; 3. In September 2006, Complainant became aware that he did not receive an in-band pay increase (IPI); and 4. In September 2006, the Agency did not give Complainant the opportunity to apply and/or receive consideration for any leadership/supervisory training courses. At the conclusion of the investigation of the instant complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. The AJ held a hearing on October 24, and October 25, 2012, and issued a decision on October 31, 2012. In that decision, the AJ found that Complainant did not prove that the Agency subjected him to discrimination as alleged. Overall, the AJ found that Complainant was clearly an individual with a disability, but he failed to show that the Agency's legitimate, non-discriminatory explanations for its actions were pretext for unlawful discrimination. Specifically, the AJ noted that, with respect to claim 1, two Assistants to the Special Agent in Charge (ATSAC1 and ATSAC2) testified that they were responsible for assigning eight FAMs for a mission that involved flying between the United States and the United Kingdom (UK) because of an international terrorism alert. ATSAC1 and ATSAC2 testified that they assigned Complainant to a team of four employees who would fly to the U.K. and spend the night there, whereas the other team of four employees was scheduled to immediately return to the U.S. after arriving in the U.K. Each team originally had one ATSAC assigned with three FAMs.4 The AJ found that management credibly testified that, upon arriving at the airport, the teams learned that the Agency's International Planning department at headquarters had changed the ticketing and team assignments. In particular, Complainant had been reassigned from the team that would stay overnight in the U.K. to the team that would fly back to the U.S. immediately, and one of the ATSACs was reassigned to replace Complainant on the team that stayed overnight in the U.K. Regarding claim 2, the AJ noted a selection committee composed of management officials reviewed application materials and ranked candidates for the J-Band Federal Air Marshal position. However, the AJ noted that the Agency admitted that it failed to maintain full application materials and scores of the applicants for the position. Nevertheless, the AJ found that this failure was not attributable to an effort to unlawfully discriminate against Complainant, hat uniform criteria were used to assess each candidate, and that Complainant was not selected because he did not receive the highest ratings from the panel. Additionally, the AJ found that Complainant's qualifications were not plainly superior to those of the selectee. Regarding claim 3, the AJ found that the Agency provided credible testimony that the grant of IPIs is at the sole discretion of the designated management officials and that IPIs are awarded each year based on limited budget constraints. The AJ noted that for 2006, only 25 percent of FAMs in Complainant's office received an IPI. Regarding claim 4, the AJ noted that Agency witnesses testified that FAMs who had ground-based positions were given ground-based assignments or training, and several FAMs who were certified emergency medical technicians (EMT) received EMT training. The AJ noted that Complainant acknowledged that he was not EMT-certified nor did he have a ground-based assignment. The AJ also noted that in September 2006, Complainant and all FAMs received leadership training. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the AJ erred in finding that Complainant did not prove that he was subjected to unlawful discrimination. Complainant maintains that with regard to claim 1, he was the only member of his team to be removed from the international mission assignment. With regard to claim 2, Complainant contends that he was not given a requisite numerical rating score for a J-band promotion, although the Special Agent in Charge (SAC) should have given him a rating score. Regarding claim 3, Complainant contends that the EEO investigation did not provide him with requested evidence that would have shown less qualified employees received within-grade pay increases. With respect to claim 4, Complainant contends that he did not receive leadership training until October 31, 2006, which was after he initiated EEO contact for this matter. The Agency requests that we affirm its final order. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Where, as here, a complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 802. J-Band Non-Selection Complainant applied and was deemed qualified for the J-Band promotion. At the time of his non-selection, he had ongoing EEO complaints. Moreover, one of the pending complaints named the SAC as the responsible management official, and the SAC testified that he was aware of Complainant's EEO activity during the time of J-Band non-selection. As such, there is a strong nexus between Complainant's prior EEO activity, and his non-selection. Consequently, we find that Complainant established a prima facie case of reprisal for claim 2. Because Complainant established a prima facie case of reprisal, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not selecting Complainant. The AJ found that the Agency met its burden of production. However, we find that this was legal error. The Agency stated that the selectee was chosen because he served on the National Naval Criminal Investigative Service for 13 years, was involved in all types of criminal investigations, was one of the first investigators at the prison facility at Guantanamo Bay, and served on the Joint Terrorism Task Force. Additionally, the recommending official (the SAC) also testified that Complainant was ranked last among qualified candidates from the Charlotte office, and he rated Complainant among the bottom third. However, in order to meet its burden of production, the Agency must specifically explain its evaluation of Complainant's qualifications. We note that we have held that an agency fails to articulate a legitimate, non-discriminatory reason when it fails to provide specific information to explain why agency officials assigned ratings or scores to a complainant. See Stewart v. Dep't of Homeland Security (TSA), EEOC Appeal No. 0520070124 (Nov. 14, 2011) (agency did not meet its burden of production for non-selection case when it merely stated that complainant was not selected because selection panel gave him lower scores than selectees, but did not explain why panel gave him lower scores); Myles v. Soc. Sec. Admin., EEOC Appeal No. 0120092511 (Feb. 10, 2011) (agency failed to meet burden of production when it merely stated that complainant was not selected because review panel ranked him lower in scoring, because this was not a specific, clear, and individualized explanation for complainant's non-selection); Clemente v. Dep't of Justice, EEOC Appeal No. 0720080012 (Sept. 24, 2008) (agency failed to meet burden of production when it provided description of selection process, generally stated that selectees were more qualified than complainant, and provided no record clarification of specific qualities that made selectees better qualified than complainant); Glomski v. U.S. Postal Serv., EEOC Appeal No. 01955157 (July 17, 1997) (agency failed to meet its burden of production because it did not provide an explanation of review committee's assignment of scores to complainant). The Agency points to a document revealing that Complainant was ranked last among Charlotte candidates. However, this document does not explain the reasoning and justification for Complainant's ranking. A bare ranking is not an analysis of Complainant's qualifications. Additionally, the Agency admitted that it failed to properly maintain full application materials and scores of the applicants for the position. We note that EEOC Regulation 29 C.F.R. § 1602.14 provides that agencies must preserve any records pertaining to selections and promotions for a period of one year from the date of the making of the record or the personnel action, whichever comes later. Moreover, the regulation requires that, once the EEO complaint process is initiated, agencies must retain personnel records until a final disposition of the complaint. The Agency's failure to maintain the records related to this selection is particularly disturbing given that the Commission previously has found that the recommending official in this case, the SAC, retaliated against Complainant in connection with another matter. See EEOC Appeal No. 0720080048 (Dec. 10, 2009). As such, the Commission finds that the Agency failed to overcome Complainant's prima facie case of reprisal, and Complainant prevails without having to prove pretext. Chhe v. Dep't of Housing and Urban Dev., EEOC Request No. 0720090008 (Aug. 6, 2010) (consequence of agency's failure to meet its burden of production under McDonnell Douglas is that complainant, having established prima facie case, prevails without having to demonstrate pretext), request for recon. den., EEOC Request No. 0520100584 (Jan. 27, 2011). Therefore, the AJ erred as a matter of law with respect to claim 2. Additionally, because we find that the Agency engaged in reprisal, we decline to review whether Complainant was also subjected to discrimination on the basis of disability for claim 2 because no further relief would be available to Complainant even if he were to also prevail on this basis. See Brooks v. Dep't of Agriculture, EEOC Appeal No. 0120093647 (Aug. 12, 2011); Conrad v. Dep't of Justice, EEOC Appeal No. 0120041275 (Dec. 20, 2006). International Mission, IPI, and Leadership Training Regarding the remaining claims, we assume for purposes of analysis, and without so finding, that Complainant established a prima facie case of reprisal and disability discrimination. Nevertheless, the Commission finds that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, management testified that it initially assigned Complainant to a team that would have stayed overnight in the U.K., but International Planning or Scheduling Operations changed the ticketing to reflect that Complainant would immediately return to the U.S. Management also stated that Complainant did not receive an IPI because he did not exceed expectations for his position, and only 25 percent of employees could receive an IPI any given year. Management further stated that Complainant and all FAMs received leadership training in September and October 2009, and Complainant did not receive ground-based or EMT training because he was not EMT-certified and did not have a ground-based assignment. In an effort to prove pretext, Complainant argues that he was deprived of two hours of overtime because he did not stay overnight in the UK, and the SAC acknowledged that local offices made team assignments instead of Scheduling Operations. However, the SAC also testified that airline ticketing was done by Scheduling Operations at Agency headquarters, and the Charlotte Field Office was not involved in the ticketing that resulted in Complainant immediately returning to the U.S. Moreover, the SAC testified that managers typically do not have discretion to make ticketing changes once employees have embarked on their mission. Complainant acknowledged that Scheduling Operations at Headquarters was responsible for ticketing, and he did not show that anyone in Scheduling Operations knew about his disability or EEO activity. Complainant maintains that he worked on a high threat international case, which should have made him eligible for an IPI. However, Agency regulations only allowed for 25 percent of employees to receive a three percent IPI in a given year, and no employee who received an increase in one year could receive an IPI the next year. Additionally, Complainant acknowledged that almost the entire office also worked on this assignment. As such, Complainant has not shown that he did anything beyond his expected duties that would have made him a leading candidate for an IPI. With respect to leadership training, Complainant acknowledges that he and all FAMs received leadership training in September and October 2009. Complainant also acknowledged that he was not in a ground-based or EMT position. We further note that Complainant testified that between 2006 and 2008, management offered him writing training, but Complainant responded that he did not want to go to that training. Consequently, we find that for claims 1, 3, and 4, Complainant failed to prove that the Agency's explanations were pretext for unlawful discrimination. We therefore find that the AJ's determinations in this regard are supported by substantial evidence of record. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination with respect to claims 1, 3, and 4. The Commission REVERSES the Agency's finding of no discrimination with respect to claim 2 and REMANDS this matter to the Agency for further processing consistent with this decision and the ORDER set forth below. ORDER The Agency is ORDERED to take the following remedial actions within one hundred-twenty (120) days of the date on which this decision becomes final, unless a different time-frame is specified below: 1. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall retroactively offer Complainant the J-Band supervisory Federal Air Marshal position for which he applied in 2006, or a substantially equivalent position, retroactive to the date on which the selectee was appointed. Complainant shall have 15 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond his control prevented a timely response. This retroactive placement shall presume Complainant has permanent employment status and satisfactory performance in the position and include all promotions, benefits, and monetary remuneration attached to the position, from the retroactive date of his promotion. 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than one hundred and twenty (120) calendar days after the date this decision becomes final. The back pay period shall be the date on which the selectee was appointed under the Vacancy Announcement Number FAMS-ALL-06-0030 until the date Complainant accepts or rejects the position. The Agency shall include all lost benefits and pay increases. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within thirty (30) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated. 4. The Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford him an opportunity to establish a causal relationship between the Agency's retaliation and his pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 5. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of in-person EEO training to all selecting officials involved in Complainant's non-promotion regarding their duties and responsibilities under Title VII, with special emphasis on the duty of managers to avoid reprisal and to retain all selection records. 6. The Agency shall consider taking appropriate disciplinary action against the responsible management official identified as the SAC. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management official identified as the SAC has left the Agency's employment, the Agency shall furnish documentation of his departure date. 7. The Agency shall post the notice referenced in the paragraph below entitled, "Posting Order." 8. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Charlotte, North Carolina facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, P.O. Box 77960, Washington, DC 20013. 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 Dec. 3, 2015 Date 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. 2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. 3 J-Band is a first-level supervisory position that is equivalent to Assistant Special Agent in Charge (ATSAC). Hearing Transcript (HT), pp. 420, 421. 4 ATSAC1 and ATSAC2 were among the eight FAMs on these assignments. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120131083 2 0120131083