Cary J.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

May 6, 2020

2019001592 (E.E.O.C. May. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cary J.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019001592 Agency No. HS-TSA-02089-2017 DECISION On January 22, 2019, 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 13, 2018 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to a hostile work environment and discrimination based on his age. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as Transportation Security Officer (TSO)/Behavior Detection Officer (BDO) at the Luis Munoz Marin International Airport (SJU) in Carolina, Puerto Rico. On November 10, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the basis of age (41) 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. 2019001592 2 1. on January 26, 2016, management sent Complainant to re-training for violating a Screening Standard Operating Procedure (SOP); 2. on May 6, 2016, management referred Complainant for TIPS training; 3. on November 10, 2016, management required Complainant to provide a statement after being accused of talking on his phone while on duty; 4. on May 25, 2017, management issued Complainant a Letter of Counseling (LOC); 5. on or about July 6, 2017, management removed Complainant from all screening functions; 6. on August 16, 2017, management issued Complainant a Letter of Reprimand (LOR); and, 7. on October 13, 2017, management denied Complainant’s request for a generator. The investigative record reflects the following pertinent matters relating to the subject claims. On January 26, 2016, the Transportation Security Manager (TSM1) (over 40) determined that Complainant had violated Standard Operating Procedure (SOP) when he allowed a passenger to pass through with certain frozen food items. The TSM1 instructed Complainant to review the SOP by re-reading it in the training room. Complainant did so. Complainant later complained to the Master Security Transportation Instructor (MSTI) (over 40) and the Expert Transportation Security Instructor (ETSI) (over 40) regarding the incident. The TSM1 stated that Complainant had violated the SOP, and she informed him that he needed to re-train by re-reading the SOP. She denied considering his age. Neither MSTI or ETSI recalled the incident. On May 6, 2016, management referred Complainant for X-Ray Training Tests (TIPS) training. TIPS are conducted monthly. Complainant asserted that if an employee fails three TIPS in a row then the employee must re-take the training. Complainant asserted that the Transportation Security Manager (TSM2) (over 40) informed him that he had to re-take TIPS due to a TIPS failure. Complainant asserted that he was not informed of his scores or which months he had failed. Complainant asserted that the Deputy Assistant Federal Security Director (DAFSD) (over 40) informed TSM2 to make Complainant re-take TIPS because DAFSD does not like him. TSM2 stated that an employee is required to take training if he/she fails a TIP once in a month. A failing score is anything below 75 percent. In December 2015, Complainant scored a 67.5 percent. In October 2016, Complainant scored a 66.7 percent. TSM2 did not recall whether he delivered to Complainant the letter that instructed him to take training for failing TIP. TSM2 said DAFSD was not involved in this incident. TSM2 denied considering or referring to the Complainant’s age. 2019001592 3 On November 10, 2016, the Assistant Federal Security Director (AFSD) (over 40) allegedly entered a checkpoint and saw Complainant talking into his smart watch. Complainant asserted that he was blowing condensation off his watch. Later that day, the Transportation Security Manager (TSM3) (over 40) informed asked him to write a statement regarding the incident. Complainant was not disciplined for this event. AFSD stated that when he had entered the area, he witnessed Complainant speaking into his watch while operating the x-ray machines. AFSD directed TSM3 to investigate the matter. TSM3 chose not to discipline Complainant because Complainant denied the accusation and AFSD had no evidence to support his allegation. On May 25, 2017, management issued Complainant a Letter of Counseling (LOC) for Failure to Follow Leave Procedures, Attendance Issues and Tardiness. Complainant acknowledged the behavior but asserted that his aunt and uncle recently died, his father was hospitalized, and he was sick himself. TSM3 stated that Complainant had been late at least once a month, every month, and he had not provided proper justification for the tardiness. On or about July 6, 2017, the Lead Transportation Security Officer (LTSO) (under 40) was conducting a bag check. The passenger who was getting screened said to LTSO to “hurry up, I don’t want to miss my flight.” Complainant stated that as a BDO, he found the passenger’s statement concerning. The passenger tried to take a photo of Complainant’s and LTSO’s identification badges. Complainant told the passenger that he could not take photos. The passenger stated, “You are going to hear from me.” Complainant asked if the passenger was threatening him. Complainant asked if the passenger wanted to go outside, which he later explained to mean only that the passenger should leave the checkpoint, not fight him. On July 7, 2017, TSM3 notified Complainant that he could no longer work in screening according per DAFSD’s instruction while an investigation was pending. DAFSD stated that Complainant was accused of inviting a passenger to fight. After his removal from screening, Complainant completed other duties including instructing passengers on the screening process, operating the lost and found, vehicle maintenance and assisting with FEMA aid. On an unknown date, Complainant verbally complained to the Federal Security Director (FSD) (over 40), who took no action. On an unknown date, Complainant verbally complained to TSM1 who took no action. On August 16, 2017, TSM3 issued Complainant a Letter of Reprimand (LOR) for Attendance Issues and Tardiness. TSM3 explained that Complainant had not improved his tardiness since being issued the LOC in May 2017. TSM3 issued a similar LOR to another over-40 employee in February 2018. TSM3 denied considering or referring to the Complainant’s age. According to Complainant, the Agency issued generators to employees to use at home after a series of hurricanes in fall 2017. However, when he waited in line for a generator, he was informed that he could not have one. Complainant acknowledged that he had filled out the paperwork for a generator incorrectly because the form has simply said, “Gen?” and he assumed it meant gender. Complainant stated he did not realize he had filled the paperwork wrong. Complainant stated that when he later complained of not receiving one, he was provided with the generator. DAFSD stated that Complainant’s initial denial had nothing to do with gender. 2019001592 4 DAFSD stated that generators were distributed based on employee requests, and because the Agency did not have Complainant marked for one, he did not initially receive his. When the Agency realized Complainant also wanted one, he was placed on the next order, which arrived approximately two weeks later. 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 (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Neither Complainant nor the Agency provided an appellate brief. 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”). Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2019001592 5 Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Unlawful Harassment Complainant also alleged that he was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). To establish this claim, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or 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. The Supreme Court in Harris 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 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.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 78 (1998). With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Analysis With respect to Complainant’s disparate treatment claims, assuming arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding management’s instructions to re-train via the SOP manual and the TIPS training, each incident is thoroughly documented in the record. 2019001592 6 In both incidents Complainant failed to operate at the expected standard and was informed of the need to re-train either by re-reading a manual (SOP) or by retaking a training course. This policy is standard throughout the Agency, and there is no indication that Complainant was forced to do so based on his age, or that management was using the training process to harass Complainant. Complainant also argued that the Agency harassed and discriminated against him when he was temporarily removed from screening functions. Here, the record demonstrates that on July 6, 2017, Complainant and a passenger were involved in a verbal altercation that led to an Administrative Inquiry. While the Inquiry was being conducted, Complainant was temporarily removed from his screening duties. The Agency explained that due to the violent nature of the allegation, it was pertinent to remove Complainant while it investigated the matter. The Inquiry determined that several witnesses, including LTSO, the passenger and his wife, interpreted Complainant’s verbal and physical cues to mean he was attempting to initiate a fight. Based on what had transpired, there is no evidence that the Agency’s decision to temporarily remove Complainant from screening procedures, while it conducted the Administrative Inquiry, was discriminatorily motivated. Regarding Complainant’s May 25, 2017 Letter of Counseling (LOC), and subsequent August 16, 2017 Letter of Reprimand (LOR), the record demonstrated that these were issued due to Complainant’s attendance record, and not his age. In this instance, Complainant acknowledge that he was having attendance issues, but asserted that personal family matters were impacting his arrival time. While he acknowledged his attendance issues, he argued others were not reprimanded or disciplined in the same way. Despite this assertion, the record demonstrates that TSM3 provided disciplinary notices to other employees who also had attendance and tardiness issues. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding adverse actions, the Agency articulated legitimate, nondiscriminatory reasons for its actions for which Complainant has failed to show were pretext for discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainant has failed in this regard. Concerning Complainant’s claim of hostile work environment, we find that the examples provided do not demonstrate evidence of a pervasively hostile work environment. For example, Complainant asserted that he was forced to do SOP and TIPS retraining; that he was removed from his screening duties; and that he was denied an emergency generator. Based on the record, the incidents described do not demonstrate an objectively hostile environment. 2019001592 7 For example, due to a clerical error that Complainant acknowledged making, he did not receive the emergency generator when expected. When the error was realized, Complainant was promptly placed on the next order list and received his generator approximately two weeks later. There is no indication here that management was attempting to harass Complainant by denying or delaying access to the generator. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s finding that it did not discriminate against Complainant as alleged. 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). 2019001592 8 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 May 6, 2020 Date