Marty A.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Apr 24, 2019

0120170936 (E.E.O.C. Apr. 24, 2019)

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

Marty A.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120170936
Agency No. HSTSA009032014

DECISION

On January 25, 2017, 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
December 27, 2016, final decision concerning his 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUE PRESENTED

Whether Complainant established that he was subjected to harassment based on race (White) and
reprisal (prior EEO activity).
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Behavioral Detection
Officer, (BDO) SV-1802-F at the Agency’s Chicago O’Hare International Airport facility in
Rosemount, Illinois. On May 27, 2014, Complainant filed an EEO complaint alleging that the
Agency discriminated against him based on race (White) and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:

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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1. On February 5, 2014, his supervisor announced during the in-briefing that there was a “new
Sheriff in town” and that management had a list of people they were “going after.”

2. On February 23, 2014, he received a Letter of Counseling (LOC) for failure to follow
instructions.

3. On April 20, 2014, he was issued another Letter of Counseling (LOC) for using profanity.

4. On April 20, 2014, his supervisor accused him of abusing his Family and Medical Leave
Act (FMLA) leave and told him to modify his FMLA leave record.

5. On April 20, 2014, his supervisor told his co-worker “be careful who you aligned yourself
with”; and “if you are asked to put anything in writing, like for this incident, be careful
what you write.”

6. On May 14, 2014, he received “the lowest” rating on his mid-year performance review.

7. Around May 14, he was denied access to his discipline record.

8. On November 19, 2014, a manager told him that he needed permission from management
to use administrative time to work on his EEO complaint.

9. On December 28, 2014, he received another LOC.

10. On February 3, 2015, he learned that racially biased testimony presented during an October
2009 Peer Review Board session convened to review the September 2009 decision to
suspend him, tainted the Peer Review Board’s 2015 decision.

Complainant’s first-line supervisor, until about November 2014, was S1 (Caucasian), a
Transportation Security Manager (TSM). His second line supervisor was S2 (African-American),
also a TSM. His third line supervisor was S3 (black), a Behavioral Detection Analysis (BDA)
Coordinator, who oversaw O’Hare’s BDA program and the activities of the BDOs assigned to the
airport. M1 (African-American) was a TSM involved in the BSA program. E1 (Caucasian), a G-
Band Expert BDO, was a colleague of Complainant and worked under S1’s supervision. C1
(Caucasian) an F-Band BDO, was also a colleague of Complainant. M2 (demographic information
unknown) became Complainant’s supervisor when S1 was assigned to the Cargo division. P1
(Caucasian) is an H-Band Program Analyst in TSA’s O’Hare’s Mission Support Division, and
facilitated TSA’s Peer Review Process, an Agency appeal process by which employees could seek
review of disciplinary actions.

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.
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In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

The record indicates the following:

Regarding Claim 1, Complainant maintained that S1 announced during an in-briefing that there
was a “new Sheriff in town” and that management had a list of people they were “going after.” S1
denied making the statement. C1 corroborated Complainant’s account. The Agency found that
Complainant did not present evidence that the remarks, even if made, were based on his race or
EEO activity.

Regarding Claim 2, Complainant was issued an LOC. S2 instructed all BDOs to consider the
online Learning Center Training a priority. Complainant was instructed to complete his training
during administrative time away from his operational duties, which S1 had designated for
Complainant to complete the training. According to S1, when she asked Complainant about his
progress on the training after he had been on the computer for about an hour. Complainant
responded that he had not begun the training because he “was working on an email related to [a]
counseling.” S1 stated that she asked El to witness her serving the LOC to Complainant.

Complainant argued that the LOC was based on his prior EEO activity, because S1 made a
comment about his EEO activity during their conversation following the issuance of the LOC.2
According to Complainant, he and S1 discussed the circumstances surrounding his progress on the
training, along with several unrelated matters, including his early arrival on February 20, 2014, to
renew his badge. Although S1 denied that she mentioned “any EEO filing or such activity,” the
Agency conceded that, at some point during the conversation, S1 did reference an earlier EEO
complaint that Complainant filed, but denied his claim that his prior EEO complaint motivated S1
in her decision to issue the LOC.

E1 overheard some mention of an EEO complaint but did not know or provide any specifics about
the exact nature of the comment. He stated that he and Complainant were instructed to work on
the training and that when S1 later came into the office, Complainant was not working on the
training as instructed. E1 stated that:

As I recall, [S1] said she was issuing the LOC because she told Complainant and I
[sic] to come upstairs to do OLC and when she stepped in the office when [sic] she
noticed that Complainant was not doing OLC. Complainant did not have his OLC
loaded at the time, so she issued the LOC to Complainant.

Finally, the Agency noted that the record contains an email from S1 to S2, immediately after she
issued the LOC, where she indicated that she had just issued Complainant a LOC because of his
failure to work on the online training during the designated time.

2 According to Complainant, S1 stated, “Well, you filed an EEO.”
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The record also contained email traffic involving Complainant, S1, S2, and S3, which indicated
that, on February 12, 2014, S2 had verbally counseled Complainant for working on his prior EEO
complaint during duty hours without having requested official time.

Regarding Claim 3, Complainant was issued another LOC for using profanity. Complainant
admitted that the incident occurred but alleged that S1 gave him the LOC because of his prior EEO
activity. Complainant stated that S1 did not issue a LOC to another employee who engaged in a
verbal argument at a checkpoint. S1 stated that he did not issue a LOC to that BDO because the
circumstances surrounding the incident were not the same, because that BDO did not use profanity.
Further, unlike Complainant’s situation, the matter involving the other BDO only involved TSA
employees, no external stakeholders were involved.

Regarding Claim 4, S1 counseled Complainant on his use of more FMLA leave than his current
FMLA agreement permitted. According to S1, to be helpful, she told Complainant that he could
ask to modify his FMLA agreement to afford him more time off. She denied threatening
Complainant with discipline. Complainant stated that S1 accused him of abusing FMLA and that
he needed to change his request or face discipline. Cl, who was present as a witness at
Complainant’s request, essentially corroborated Complainant’s account.

The Agency noted that Complainant did not deny that he was using more FMLA that allowed in
his agreement, and that there was no evidence that S1’s admonition was based on Complainant’s
race or EEO activity.

Regarding Claim 5, C1 maintained that while he and S1 were alone, on April 20, 2014, after
Complainant was counseled, S1 cautioned him to be careful who he “aligns himself with,” and to
be careful about what he writes. The Agency noted that S1 denied making any such remarks, and
the record did not contain evidence corroborating Cl’s assertion over S1’s denial.

Regarding Claim 6, Complainant received a rating of “3” (Achieved Expectations) in five of his
performance competencies and a rating of “4” in the other remaining competency (Exceeded
Expectations) on his mid-year performance review. With respect to areas where Complainant
could have improved, S1 noted, among other comments, that Complainant could have served as a
peer-to-peer coach, exercised better tact and courtesy, and provided at least one documented
example of his assisting others with the accurate application of standard operating procedures.

Based on his end-of-year rating of 4 (Exceeded Expectations) in 2013, Complainant speculated
that S1 rated him “Achieved Expectations” on his mid-year review because of his EEO activity.
The Agency, however, noted that S2, who was his first-line supervisor in 2013, not S1, gave him
the higher end-of-year rating in 2013, and that Complainant did not specifically refute the validity
of any of S1’s suggested areas for improvement, and the record did not contain evidence indicating
that retaliatory animus, rather than a difference in expectations, motivated S1’s somewhat lower
mid-year rating.

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Regarding Claim 7, the Agency noted that Complainant, in his affidavit, indicated that he did not
believe that his inability to access his disciplinary record in the electronic records system was
based on discrimination or retaliation, and that there was no evidence to support such a claim.

Regarding Claim 8, M1 indicated that he approached Complainant while Complainant was
working on a computer in the administrative office because Complainant was scheduled to be
working at one of the checkpoints at the time. According to M1, he did not know what Complainant
was working on, and he told Complainant to return to the checkpoint and advised him that he
needed to get permission to be in the administrative office during a regularly scheduled checkpoint
shift. Complainant maintained that, when M1 approached him, he told M1 that he was working on
an EEO complaint, and that he had received permission from E1 to do so. M1 stated that he pointed
out that E1, although a “lead,” was not a supervisor, and employees had to obtain permission from
a supervisor to work in the administrative office during shifts. M1 indicated that he did not
question C1, who was also in the office at that time, because he knew he had permission to be
there.

The Agency maintained that M1’s conduct was consistent with EEOC Management Directive 110,
Chapter 6, which provides that an employee and management must agree on the scheduling of
official time to work on an EEO complaint before the employee uses official time.

Regarding Claim 9, M1 indicated that he instructed M2 to issue Complainant a LOC on December
28, 2014, because Complainant, despite guidance to do so, failed to sign training rosters to indicate
his presence at various training sessions. M1 explained that Complainant “was adamant that he
was not going to sign the rosters.” The LOC noted that Complainant had been present at 10
training sessions and had not once signed the rosters.

Asserting that he was the only employee who received a LOC, even though “not everyone signed
[the roster] every day,” Complainant maintained that M1 unjustly singled him out. The Agency
indicated, however, that while many employees have from time to time failed to sign-in, however,
the records showed that Complainant never signed-in.

Regarding Claim 10, in September 2009, M1 suspended Complainant for failing to follow
instructions, unprofessional conduct and lack of candor. Complainant did comply with M1’s
instruction to return training materials, falsely told the training instructors that he had turned in the
materials and made unprofessional comments to a training instructor. Complainant appealed to
through the Agency’s Peer Review Process. The Peer Review Board sustained the suspension.

Complainant alleged that, in February 2015, one of the Board members told him that, during the
Board’s 2009 proceedings, P1 interrupted Board members when they questioned M1 about
whether M1 relied only on statements from African Americans in deciding to suspend
Complainant. Complainant also alleged that P1 told the Board that they could not consider M1’s
testimony about the races of the witnesses he relied on and suggested that P1 otherwise improperly
influenced the Board’s decision.

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The Agency dismissed Claim 10 on the grounds that it failed to state a claim because it was an
impermissible collateral attack on Agency’s Peer Review Board’s determination.

CONTENTIONS ON APPEAL

Complainant presented a brief arguing, among other things, that the description of his claims was
inaccurately stated by the Agency; and that he established that the Agency subjected him to
discrimination and harassment.

The Agency did not file a brief on appeal.

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”).

At the outset, we find that the Agency’s dismissal of Claim 10 on the grounds that it failed to state
a claim was appropriate. Complainant, to the extent that he has not already do so, should have
raised his concerns about the conduct of the Peer Review Board process within that process, not
as a separate EEO complaint to attack the Board’s determination with respect to him.

Disparate Treatment

To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at
802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Dep’t of Community 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 pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing
that the proffered explanations are unworthy of credence or that a discriminatory reason more
likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.

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Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race and reprisal, we find that the Agency presented legitimate, nondiscriminatory reasons for its
actions with regard to Complainant’s allegations set forth in Claims, 23, 3, 4, 6, 7, 8, and 9. We
also find that Complainant did not provide any persuasive evidence demonstrating that the
Agency’s reasons were a pretext for discrimination.

Harassment

Regarding Complainant’s hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile
work environment must fail with respect to Claims, 2, 3, 4, 6, 7, 8, and 9. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding
of a hostile work environment is precluded by our determination that Complainant failed to
establish that any of these actions were motivated by discriminatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Claims 1 and 5

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” The Court explained that an “objectively hostile
or abusive work environment [is created when] a reasonable person would find [it] hostile or
abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether
the harassment is sufficiently severe to trigger a violation of Title VII must be determined by
looking at all the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.”

To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily
protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on the protected class; (4) the
harassment had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement
Guidance on Harris).

3 Although the record indicates that, contrary to her assertion otherwise, S1 did mention
Complainant’s prior EEO complaint, based on the totality of the record, we are not persuaded that
the context was retaliatory in nature.
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The evaluation “requires careful consideration of the social context in which particular behavior
occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998).

In this case, the record does not support a finding that the Agency subjected Complainant to
discriminatory harassment. With respect to Claims 1 and 5, Complainant did not establish that the
incidents occurred because of his race or prior protected EEO activity. There is no question that
Complainant and his managers have a contentions relationship, but we find no persuasive evidence
that discriminatory animus played a role here, nor do we find that he was subjected to severe or
pervasive conduct that had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment. Accordingly,
we find that Complainant has not demonstrated that the Agency subjected him to discrimination
or a hostile work environment based on his race or prior protected EEO activity.4

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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

4 As Complainant did not request a hearing, we do not have the benefit of an Administrative
Judge’s credibility determinations after a hearing; therefore, we can only evaluate the facts based
on the weight of the evidence presented to us.
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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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (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 24, 2019
Date