Titus M.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Sep 6, 2019

2019001759 (E.E.O.C. Sep. 6, 2019)

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

Titus M.,1
Complainant,

v.

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

Appeal No. 2019001759

Hearing No. 530-2017-00115X

Agency Nos. HS-TSA0-25847-2016 and HS-TSA-24952-2016

DECISION

On November 21, 2018, 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
final order concerning an equal employment opportunity (EEO) complaint claiming 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Transportation Security
Officer at the Baltimore-Washington International Airport in Glen Burnie, Maryland.

On April 13, 2016, Complainant filed a formal complaint claiming that the Agency discriminated
against him based on race (African-American), sex (male), religion (Baptist), color (black), age
(60), and in reprisal for EEO activity 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 March 3, 2016, Complainant became aware that he was not selected for a Behavioral
Detection Officer (BDO) position (Announcement number: BWI-15-971040);

2. on March 1, 2016, Complainant became aware that he was not selected for a Lead
Transportation Security Officer (LTSO) position (Announcement number: BWI-15-
965183);

3. on October 26, 2015, a co-worker yelled and cursed at Complainant when the Complainant
sent over passenger items for scanning;

4. on October 22, 2015, Complainant was harassed when the co-worker made religious-based
comments to him; and

5. on September 21, 2015, the co-worker “yelled” at him.

On September 12, 2016, the Agency concluded its investigation. The Agency provided
Complainant with its report of investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing.

The AJ rendered a bench decision by summary judgment in favor of the Agency. Complainant
faxed the Agency’s Office for Civil Rights and Civil Liberties to “ask the EEO headquarters not
to implement the [AJ's] decision.” In accordance with 29 C.F.R. § 1614.109(i), the AJ’s decision
became the final action of the Agency because the Agency failed to issue a final order within forty
days of the AJ’s decision as required under 29 C.F.R. § 1614.110.

This appeal followed. On appeal, Complainant accuses the AJ of animus against African
Americans. According to Complainant, the AJ demonstrated hatred towards Complainant in the
manner in which the AJ looked at Complainant and snapped at Complainant while rendering the
bench decision. Complainant stated that the AJ admitted Complainant’s testimony was credible
but nevertheless decided to “go along” with less credible testimony from the alleged harasser.
Complainant implied that the AJ was Caucasian and unethically rendered his bench decision out
of racial favoritism for the Agency’s attorney and alleged harasser, who were also Caucasian.
Complainant alleged that Agency’s attorney had unfairly influenced the AJ’s decision through ex
parte communications after the AJ refused to consider further submissions from Complainant.

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ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a
hearing when he finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).
EEOC’s regulation was patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. The U.S. Supreme Court held that summary judgment is
appropriate where upon determination that, given the applicable substantive legal and evidentiary
standards, 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 judge 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.

To successfully oppose an AJ’s decision without a hearing, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute. As noted above, we acknowledge Complainant’s
claim that the AJ as biased. Complainant, however, relied solely on his own personal assertions
about the AJ’s rendering of the bench decision. He otherwise failed to present any evidence that
the AJ lacked impartiality.

Nonselection for BDO and Nonselection for LTSO

We analyze Complainant’s non-selection claims in accordance with the U.S. Supreme Court’s
three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant had to establish a prima facie case by demonstrating he was subjected to adverse
employment action under circumstances that would support his inferences of discrimination. See
Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden was on the Agency
to articulate legitimate and nondiscriminatory reasons for its actions at issue. See St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502 (1993). If the Agency articulated a legitimate, nondiscriminatory
reason for its actions, then our inquiry proceeds to the third step—whether Complainant has shown
by a preponderance of evidence that the Agency’s reasons were pretexts to mask discriminatory
motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); see also U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).

We presumed Complainant established his prima facie case. We find, as did the AJ, that the
Agency articulated legitimate and nondiscriminatory reasons for promoting other applicants.
Specifically, two different and diverse panels had scored Complainant well below the selectees
when he interviewed for both the BDO and LPTO vacancies. Meanwhile, Complainant failed to
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establish the Agency’s nondiscriminatory explanations were pretextual. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Additionally, Complainant failed to prove
his qualifications were “plainly superior” to the those of the selectees. See Bauer v. Bailar, 647
F.2d 1037, 1048 (10th Cir. 1981).

Harassment Allegations Against Co-worker

We analyze Complainant’s allegations about his coworker in the context of harassment. It is
unlawful to subject an employee to a hostile work environment because of his protected status.
See McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). To be unlawful, the
harassment must also be sufficiently severe or pervasive. Wibstad v. U.S. Postal Serv., EEOC
Appeal No. 01972699 (Aug. 14, 1998). To prove his harassment claim, Complainant had to show
he was subjected to conduct sufficiently severe or pervasive such that a reasonable person would
have also found it hostile or abusive. Moreover, Complainant also had to demonstrate he was
harassed because of his protected statuses. Only if Complainant had established both elements –
objective hostility and targeted intent – could the Agency be liable.

The record reflects that at least three verbal altercations occurred between Complainant and a
particular coworker (Caucasian, Jewish, under age 40) in August and September 2015. Twice,
Complainant and this co-worker argued over whether items they were monitoring for contraband
merited further inspection. Complainant disagreed with the co-worker regarding two pieces of
luggage in which Complainant perceived items which he had found suspicious as the result of an
electronic scan. The co-worker questioned Complainant’s screening techniques after searches
Complainant had directed revealed innocuous contents such as a picture frame. Complainant
responded that he had followed proper Agency procedures by selecting for inspection anything
he found dubious. On a separate occasion, Complainant and this same co-worker argued over
whether management had been unfair in assigning them work on weekends on account of their
different sabbaths.

We have reviewed all accounts of their disputes exhaustively. The record reflects that both parties
raised voices and used provocative language, accusing each other of incompetence. We remind
Complainant that federal anti-discrimination statutes are not general civility codes that can protect
him from “ordinary tribulations.” Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332
(Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty
annoyances between an alleged harasser and a complainant do not rise to the level of harassment).
Instead, EEOC enforces laws against discriminatory conduct that harmfully alters one’s work
environment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). In the
instant mater, the alleged harassment was insufficiently severe and not sufficiently pervasive to
constitute a hostile work environment. Even when examined together and in the light most
favorable to Complainant, he did not describe abuse on par with racial epithets or abusive
misconduct that would make anyone’s work environment objectively hostile. Complainant v.
Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015).

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CONCLUSION

We AFFIRM the AJ decision without a hearing because a preponderance of evidence did not
establish discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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 Ch. 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,
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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

September 6, 2019
Date