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Alexander Reagan Ma’alona, a male Asian/Pacific Islander with dark brown skin, worked for the Transportation Security Administration (“TSA”) as a Transportation Security Officer from 2002 to 2012.

After the September 11, 2001 terrorist attacks, Congress enacted the Aviation and Transportation Security Act of 2001 (“ATSA”), which established the TSA. Under the ATSA, the TSA was given extensive powers to evaluate transportation threats, enforce security regulations, and supervise airport security measures. As per the ATSA and TSA guidelines, all Transportation Security Officers are required to pass an annual proficiency assessment to retain their employment with the TSA.

In 2012, the TSA utilized an annual recertification process called the Performance Accountability and Standards System (“PASS”) to conduct proficiency reviews. These 2012 PASS assessments covered various areas such as image proficiency, adherence to standard operating procedures, practical skills, and mastery of on-screen alarm resolution protocols (“OMA”). For employees who did not pass the assessment, a remediation and re-assessment process was in place to give them an opportunity to enhance their performance. However, if an employee failed to pass the assessment after three attempts, they could be subject to termination.

On August 1, 2012, Ma’alona failed to pass his initial assessment in the OMA category. He was promptly notified on the same day that he had a maximum of fifteen calendar days to get ready for a second attempt to pass the OMA assessment. Additionally, he received remediation training from an instructor. Ma’alona opted to retake the OMA assessment the next day, but unfortunately, he failed once again. Following this outcome, he was informed that he had another fifteen days to prepare for his third and final attempt to pass the assessment. On August 7, 2012, he received further mediation training. Ma’alona decided to undergo the OMA assessment on August 10, 2012, but, unfortunately, he failed for the third time and was fired.

The employment discrimination lawsuit filed on his behalf asserts that he was wrongfully fired because of unlawful discrimination based on race/color and gender in violation of Title VII of the Civil Rights Act of 1964.

There are a few obvious issues in this case. There is no direct evidence of race or gender discrimination, and no explanation as to why TSA suddenly became discriminatory against Ma’alona after 10 years working there (It does happen with new managers; in failure to promote situations; and for other reasons – but the employee must at least identify and articulate such a reason.) More importantly, Ma’alona was given the opportunity to pass the assessment three times when the policy only provided two. If the TSA wanted him out, it did not have to give Ma’alona a third chance.

The United States District Court, Central District of California granted summary judgment and dismissed the claim. Skipps v. Mayorkas, No. 219CV10557ODWAGRX, 2021 WL 3849705 (C.D. Cal. Aug. 27, 2021). Then, the United States Court of Appeals for the Ninth Circuit recently affirmed the dismissal. Skipps v. Mayorkas, No. 21-56184, 2023 WL 3477835 (9th Cir. May 16, 2023). However, each Court reached the same conclusion on a different basis.

How do you prove disparate treatment at work?

Title VII prohibits employers from engaging in discriminatory practices based on race, color, religion, sex, national origin, gender identity, or sexual orientation. 42 U.S.C. § 2000e-2(a)(1)).

Disparate treatment, under Title VII, refers to a form of employment discrimination where an employer treats individuals differently based on their protected characteristics such as race, color, religion, gender, LGBTQ status, or national origin. Disparate treatment is found when an employee is subjected to less favorable treatment compared to other similarly situated employees in similar circumstances, solely because of their membership in a protected class. Disparate treatment may involve overt acts of discrimination, such as unequal hiring practices, promotions, pay, or disciplinary actions, as well as more subtle forms of bias or prejudice. To establish a claim of disparate treatment, the plaintiff must demonstrate that their protected characteristic was a motivating factor in the employer’s adverse employment actions. Specifically, to establish a prima facie case (the initial requirements) of disparate-treatment discrimination, an employee must present admissible evidence of the following: (1) membership in a protected class; (2) satisfactory job performance according to the employer’s legitimate expectations; (3) experiencing an adverse employment action; and (4) individuals outside the protected class, who were in similar circumstances, were treated more favorably.

The United States District Court for the Central District of California held:

Plaintiff fails to raise a triable issue of material fact as to the second element, which requires evidence Ma’alona was performing to the TSA’s legitimate expectations. Here, all Transportation Security Officers were required to pass the annual proficiency review to remain employed at the TSA. It is undisputed that Ma’alona failed to attain a qualifying score on his OMA assessment after three attempts. (DSUF 14, 18, 21; Opp’n 7, ECF No. 22.) In light of the critical nature of the TSA’s role in securing the safety of the traveling public, this was not a “minor” performance issue. See, e.g., Diaz v. Eagle Produce Ltd., 521 F.3d 1201, 1208 (9th Cir. 2008) (“[A] plaintiff who violates company policy and fails to improve his performance despite a warning has not demonstrated satisfactory performance.” (internal quotation marks omitted)); Swan v. Bank of Am., 360 F. App’x, 903, 905 (9th Cir. 2009) (finding the plaintiff failed to establish she performed her job satisfactorily where, despite written warnings, she continued to perform poorly). Therefore, the Court finds that no reasonable jury could conclude Ma’alona was performing to the TSA’s legitimate expectations.

Skipps v. Mayorkas, No. 219CV10557ODWAGRX, 2021 WL 3849705 at *3.

This makes sense. There is a test directly designed to determine if you can do your job. Unless there is an inherent racial or other bias baked into the test (see disparate impact claims), the failure to pass the universally given test makes it hard, if not impossible, for the employee to demonstrate that he/she/they is qualified for the position.

Best Race Discrimination Attorney Blogs on Point:

If I prove all the initial elements of a race discrimination claim, do I win my case?

No – at least, not yet anyway.

Without direct evidence of discrimination, Title VII claims are analyzed using what is known as the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 1973. This framework involves three steps: (1) the employee must establish a prima facie case of discrimination (which we discussed above); (2) the burden shifts to the employer to provide a legitimate nondiscriminatory reason for the adverse employment decision or action; and (3) the employee must demonstrate that the employer’s reason is a pretext for discrimination.

“Pretext” refers to a false or misleading reason given to conceal the true motive behind an action or decision. In the context of employment discrimination, it means that the employer’s stated reason for an adverse employment decision (such as termination or denial of promotion) is not the real reason, but rather a cover-up for discrimination based on factors like race, gender, or other protected characteristics. To prove pretext, the employee must demonstrate that the employer’s stated reason is false, insufficient, or did not really motivate the employer.

On appeal in Skipps, the United States Court of Appeals for the Ninth Circuit focused on the last two steps:

We assume without deciding that Skipps established a prima facie case of discrimination. The burden thus shifted to Ma’alona’s employer to articulate a legitimate nondiscriminatory reason for its decision to discharge Ma’alona. Here, the employer met that burden by pointing to Ma’alona’s failure to pass his annual proficiency assessment. Therefore, the burden shifted back to Skipps to produce evidence that this reason is pretextual.

Skipps failed to provide sufficient evidence that the employer’s proffered reason for discharging Ma’alona was pretextual. To create a triable issue of fact on this issue, Skipps had to present either some direct evidence of the employer’s discriminatory motive or “specific” and “substantial” indirect evidence that its reason for terminating Ma’alona was pretextual. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221–22 (9th Cir. 1998) (quoting Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996)). For example, evidence that comparator employees received more favorable treatment than the employee who experienced the adverse employment action can constitute evidence of pretext. Weil, 922 F.3d at 1004; see also Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1158–59 (9th Cir. 2010). But it “is not enough for employees to be in similar employment positions; rather, the [employee] and the comparator employee[s] must be ‘similarly situated … in all material respects.’” Weil, 922 F.3d at 1004 (quoting Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006)).

Skipps v. Mayorkas, No. 21-56184, 2023 WL 3477835 at *1.

The plaintiff did point to six other employees that were not fired after failing the proficiency exam. However, the Ninth Circuit Court of Appeals held that these were not sufficiently similar employees as four of the employees received demotions to Ma’alona’s position and no demotions were available for Ma’alona; another one of the comparators subsequently passed the test; and the last one retired after failing the test, and thus, was not fired.

Best Wrongful Termination Lawyer Blogs on Point:

Do I have a case for wrongful termination nor employment discrimination?

The best way to determine if you have a case for being wrongly fired or unlawfully discriminated against at your job is to consult a law firm that focuses on employee’s rights. You should not wait to do so as employment claims have quick statutes of limitations and failing to act quickly may cause you to lose your claims. So, call a Spitz attorney right now to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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