Ralph E.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Dec 20, 2017

0120160097 (E.E.O.C. Dec. 20, 2017)

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

Ralph E.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120160097

Hearing No. 460-2015-00101X

Agency No. HS-TSA-01621-2014

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated August 21, 2015, dismissing his complaint of
unlawful employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal
at the Agency’s Houston Federal Air Marshal Service Field Office in Houston, Texas. In
November 2013, Complainant claimed that he was teaching his son to duck hunt at the Justin
Hurst Wildlife Management Area (JHWMA). The Assistant Area Manager/Wildlife Biologist
requested to see Complainant’s hunting license during check-in for hunters. Complainant could
not produce all of the documentation needed to legally hunt or observe. The Assistant Area
Manager stated that Complainant flashed his Federal Air Marshal badge and assured the
Assistant Area Manager that he was legally allowed to hunt. The Assistant Area Manager
allowed Complainant and his son to hunt and provided Complainant’s information to the Game
Warden. The Game Warden later performed a license check and determined that Complainant

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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did not have a valid hunting license. Additionally, a Fish and Wildlife Senior Technician
reported that Complainant had previously parked his vehicle in an unauthorized area in
September 2013, flashed his badge, and said “don’t worry about it.” The Game Warden
contacted the Houston Field Office to report Complainant’s actions. The matter was referred to
the Office of Inspections (OOI) for an investigation.

Complainant subsequently received a copy of the OOI investigative report. After reading the
report, Complainant believed that the OOI Investigator falsified some of the information in the
report. Complainant disputed numerous items in the report including that he was “stopped” by
the Texas Parks and Wildlife Department (TPWD) officials and that he told the official at the
check-in station that he was a Federal Air Marshal. Complainant believed that the OOI
Investigator falsified the information in the report to create a basis for disciplining him.
Complainant reported the alleged falsification to the Office of Professional Responsibility.

On April 18, 2014, Complainant received a Notice of Proposed Suspension for seven days from
the Office of Professional Responsibility. The Proposed Notice charged Complainant with
Misuse of Position based on the September 2013 and November 2013 incidents as detailed in the
investigative report. Complainant submitted a written reply on May 7, 2014. On September 12,
2014, the Unit Chief of the Office of Professional Responsibility issued Complainant a Notice of
Decision informing him that he was suspended for five days for Misuse of Position.2

On September 24, 2014, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the basis of age (48) when on May 6, 2014, during an Office
of Inspections Investigation (OOI), an OOI Inspector falsified information to bolster her
investigation against Complainant which led to him receiving a suspension.

Following the investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter dismissed
the request for failure to proceed after Complainant failed to comply with her orders. The AJ
remanded the complaint to the Agency for a FAD, and the Agency issued a FAD.

In the FAD, the Agency determined that the complaint was an improper collateral attack on a
proceeding from another forum. The Agency concluded that Complainant was attempting to use
the EEO process to express his dissatisfaction with the manner in which the OOI Investigator
conducted the OOI investigation. The Agency determined that the appropriate place for
Complainant to express his dissatisfaction with the OOI investigation is the OOI process. As a
result, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to
state a claim. The instant appeal followed.

2 The Unit Chief has since retired from the Agency and did not participate in the investigation of
this complaint.
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CONTENTIONS ON APPEAL

On appeal, Complainant simply states that he wishes to appeal the Agency’s FAD and that he
was unable to have an initial hearing from the AJ because he missed an appointment.
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

The AJ’s Dismissal of Complainant’s Hearing Request

As a preliminary matter, the Commission will address the AJ’s decision to dismiss
Complainant's hearing request as a sanction. The Commission notes that Commission
regulations and precedent provide AJs with broad discretion in matters relating to the conduct of
a hearing, including the authority to sanction a party for failure, without good cause shown, to
fully comply with an order. See 29 C.F.R. § 1614.109(e); Equal Employment Opportunity
Commission Management Directive 110 for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug.
5, 2015). However, such sanctions must be tailored in each case to appropriately address the
underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-
complying party from similar conduct in the future, as well as to equitably remedy the opposing
party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion
to impose a harsher sanction.

Here, Complainant does not dispute that he was informed in the May 5, 2015 Order of
Acknowledgement that failure to comply with the AJ’s orders could result in sanctions, including
dismissal of his hearing request. Complainant failed to comply with the AJ’s order to submit a
Designation of Representative form and a settlement offer to the AJ and the Agency.
Additionally, Complainant failed to appear for the telephonic Initial Status Conference. As a
result, the AJ dismissed Complainant’s hearing request for failure to proceed. Complainant has
presented no arguments on appeal regarding the AJ’s sanction against him. In any event, the
Commission finds that the AJ did not abuse his discretion by dismissing Complainant's hearing
request as a sanction.

The Agency’s Dismissal Decision

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age, or
disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). The Commission’s federal sector case
precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz
v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

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The Agency claimed that Complainant’s complaint amounted to an impermissible collateral
attack on the OOI investigative process. The Commission has held that an employee cannot use
the EEO complaint process to lodge a collateral attack on another proceeding, including the
results of an internal investigation. See Wills v. Dep't of Def., EEOC Request No. 05970596
(July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A claim that can be
characterized as a collateral attack, by definition, involves a challenge to another forum’s
proceeding, such as the grievance process, the workers’ compensation process, or, as in this
instance, an internal agency investigation. See Fisher v. Dep't of Def., EEOC Request No.
05931059 (July 15, 1994). The Commission agrees with the Agency that the proper forum for
Complainant to have raised his challenges to actions which occurred during the internal
investigation was during the internal investigation itself. It is inappropriate to now attempt to use
the EEO process to collaterally attack actions which occurred during the internal investigation
process. Thus, the Commission finds that the Agency properly dismissed Complainant’s
challenges to actions that occurred during the OOI investigation for failure to state a claim.

The Commission finds, however, that a fair reading of the formal complaint and related materials
shows that Complainant intended to challenge the suspension he received as a result of the OOI
investigation as well. Complainant claims that the Agency was closing offices and making other
cutbacks which led him to believe that the Agency was targeting him because of his age. Thus,
the Commission finds that Complainant’s complaint includes the allegation that he was
discriminated against based on his age when the Agency issued the Notice of Suspension. Since
the record is fully developed as to this claim, the Commission will address the merits of this
allegation in the interests of administrative efficiency of processing.

Disparate Treatment

In general, disparate treatment claims, such as the matter before the Commission, are examined
under a tripartite analysis whereby Complainant 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. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying the analytical framework described in McDonnell Douglas to an ADEA
disparate treatment claim). The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate
by a preponderance of the evidence that the Agency’s reasons were a pretext for discrimination.
Id. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by
a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715-716 (1983).

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Assuming arguendo that Complainant established a prima facie case of age discrimination,
record evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for
its actions. The Case Manager/Adjudicator with the Office of Professional Responsibility stated
that she proposed Complainant’s suspension for seven days based on the totality of the evidence
in the investigative report. ROI, at 377. The Case Manager charged Complainant with Misuse
of Position based on Complainant’s actions of flashing his law enforcement badge to a TPWD
employee while parked in an unauthorized area on September 17, 2013, and for again flashing
his law enforcement badge instead of a hunting license to TPWD employee on November 5,
2013. Id. at 443-48. Complainant disputed the information relied upon in the Notice of
Proposed Suspension, specifically that he was “stopped” by park officials or that he told park
officials that he was a Federal Air Marshal. Id. at 56, 428-31. The Unit Chief considered
Complainant’s rebuttal to the Notice of Proposed Suspension and mitigated the suspension down
to five days. Id. at 451-57. The Unit Chief agreed with the Case Manager that the evidence
showed that Complainant advised a TPWD employee that he was a law enforcement officer and
represented that he had a valid hunting license to gain access to the JHWMA. Id. at 455. Both
considered Complainant’s interaction with TPWD employees to be an embarrassment to the
Agency given the colloborative partnership and mutual trust Federal Air Marshals must maintain
with other government entities to fulfill the Agency’s mission. Id. at 446, 455. After
considering Complainant’s service to the Agency and his most recent performance review, the
Unit Chief issued Complainant the Notice of Suspension for five days for Misuse of Position. Id.
at 455.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

The Commission finds no evidence that Complainant’s age was a factor in any of the Agency’s
actions. Complainant’s subjective belief that the management actions at issue were the result of
discrimination is insufficient to prove pretext. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were
not the real reasons and that the Agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
was not subjected to discrimination as alleged.

CONCLUSION

The Commission reverses the Agency’s final decision dismissing Complainant’s formal
complaint with regard to the suspension issue. However, after a review of the record in its
entirety, including consideration of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission that Complainant has not proven by a
preponderance of the evidence that he was subjected to unlawful discrimination.

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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 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.

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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

December 20, 2017
Date