Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120131849 (E.E.O.C. Feb. 11, 2015)

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

Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120131849

Hearing No. 530-2009-00046X

Agency Nos. HS-08-TSA-004920,
HS-08-TSA-005668

DECISION
On April 17, 2013, Complainant filed an appeal from the Agency’s March 8, 2013, final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et. seq

. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Transportation Security Officer in Philadelphia, Pennsylvania. On May 12, 2008,
Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against
him on the bases of his race (Caucasian), color (white) and in reprisal for his prior protected
EEO when:

1. On February 25, 2008, Complainant’s Supervisor convened an unannounced pre-
decision disciplinary discussion during which he accused Complainant of
misrepresentation of official government documents, conduct unbecoming a
Supervisory Transportation Security Officer, and failure to provide positive
leadership.

2. On February 26, 2008, management placed Complainant on administrative leave.

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3. On February 26, 2008, management issued a notice to all airport security personnel
informing them that Complainant was on administrative leave.

4. On March 5, 2008, management issued Complainant a Letter of Proposed Removal.

5. On April 10, 2008, management demoted Complainant from a Supervisory
Transportation Security Officer to a Lead Transportation Security Officer position
with reduced pay.

Complainant also claimed that the incidents at issue constituted a discriminatory hostile work
environment.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing
on January 9, 2013, and issued a decision on February 6, 2013.

The AJ found that no discrimination occurred. The AJ noted that in addition to Complainant’s
primary duties as a Supervisory Transportation Security Officer involving providing airport
security services, he was also responsible for certifying the time and attendance records of his
subordinates on a biweekly basis. The AJ stated that Complainant was responsible for
reviewing his subordinates’ timesheets for accuracy and then submitting them with any
required documentation such as the employees’ approved leave request forms to the
timekeepers for processing.

The matter at issue arose after the Checkpoint Manager, while performing routine
housekeeping duties, discovered a stack of leave requests (SF-71 forms) in a drawer in mid-
2007. Complainant had signed the SF-71 forms and the dates of the leave requests revealed
that the employees had submitted them several pay periods prior to their discovery. The
Checkpoint Manager reviewed the matter and determined that the employees had taken leave
on the dates listed in their SF-71 forms but were never charged any leave for their absences.
The AJ observed that subsequently an Employee Relations Specialist investigated whether
Complainant’s failure to submit the SF-71 forms was symptomatic of a general pattern of
mismanagement with regard to certifying time and attendance, and also whether other
Supervisory Transportation Security Officers were consistently making such errors.

According to the Employee Relations Specialist, the investigation revealed that Complainant
had improperly certified twenty additional inaccurate time and attendance reports for
subordinates between January and June 2007. The Employee Relations Specialist also
randomly investigated eight other Supervisory Transportation Security Officers for the same
period and the investigation revealed no similar pattern of inaccuracies.

On February 25, 2008, Complainant’s third line supervisor informed Complainant that he was
being charged with misrepresentation of official government documents resulting in significant
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government loss, conduct unbecoming a Supervisory Transportation Security Officer and
failure to provide positive leadership. The third line supervisor issued a memorandum the
following day informing all security personnel at the airport that Complainant had been placed
on administrative leave, his security badges had been deactivated and that he had been directed
not to contact other employees. Personnel were also instructed to remove Complainant’s name
from the list of employees with security exempt entrance authority.

On March 5, 2008, the Assistant Federal Screening Security Director issued Complainant a
Notice of Proposed Removal for exhibiting a lack of reasonable care in performing his
supervisory responsibilities and failure to provide positive leadership. The AJ noted that in
support of the Notice of Proposed Removal, the Assistant Federal Screening Security Director
cited the twenty instances between January 4, 2007, and June 20, 2007, that Complainant had
failed to forward the proper documentation of his subordinates’ leave requests to the
timekeeper resulting in 160 hours of leave that was not charged to the subordinates for their
absences.

The AJ observed that in Complainant’s response to the Notice of Proposed Removal and in his
testimony at the hearing, he did not deny that he committed all of the errors referenced in the
Notice. On April 10, 2008, the Deputy Screening Security Director issued Complainant a
notice that based on her review of Complainant’s reply to the Notice of Proposed Removal, she
decided to demote him in lieu of termination. Complainant was demoted to the position of
Lead Transportation Security Officer effective April 14, 2008.

The AJ noted that Complainant argued that the Agency routinely circulated a time and
attendance error log to all supervisors detailing any certification errors that supervisors had
made during the previous pay period and permitting the supervisors to remedy the mistakes
without consequence. Complainant claimed that a similar investigation was not pursued
against other Supervisory Transportation Security Officers who committed errors in certifying
time and attendance records, and thus this is evidence that he was harassed and subjected to
disparate treatment on the bases of his race, color and prior EEO activity.

The AJ rejected this line of argument. The AJ found the Checkpoint Manager’s testimony to
be credible. The AJ reasoned that Complainant was not targeted for investigation based on a
discriminatory factor, but rather because the Checkpoint Manager found a stack of SF-71
forms hidden in a drawer that Complainant failed to submit. The AJ stated that although
Complainant testified credibly that he did not recall placing the SF-71 forms in the drawer,
Complainant acknowledged that it was possible he did so. The AJ distinguished Complainant’s
conduct from other supervisors who made certification mistakes by observing that no other
supervisors were suspected of maintaining a group of weeks old unsubmitted SF-71 forms
stacked together in an inappropriate place out of view.

The AJ also found the Employee Relations Specialist’s testimony to be credible. The AJ noted
that her testimony established that the eight other supervisors who were investigated did not
have a similar pattern of error to that of Complainant. Complainant claimed that he should
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have been allowed to correct his errors since other supervisors were permitted to do so. The
AJ reasoned that the discovery of Complainant’s SF-71 forms in a suspicious location was a
nondiscriminatory, nonretaliatory reason for singling Complainant out, notwithstanding similar
mistakes made by other supervisors which were captured by the time and attendance error log.

With regard to Complainant’s claim of reprisal, the AJ observed that Complainant cited his
participation in a coworker’s Merit Systems Protection Board hearing on January 28, 2008, his
contact of the Agency’s Office of Civil Rights and Liberties on January 30, 2008, to report that
a supervisor had engaged in objectionable conduct during the MSPB hearing and that on
February 25, 2008, he was scheduled to provide an affidavit supporting a coworker’s
discrimination claim against the Agency. However, the AJ found no causal connection
between Complainant’s demotion and his EEO activity since the Agency initiated the
investigation into Complainant’s conduct several months prior to any alleged EEO activity.
The AJ further found that Complainant did not establish that the Agency’s explanation for its
actions was pretext intended to mask discriminatory intent.

With respect to Complainant’s hostile work environment claim, the AJ observed that the
Agency explained that management placed Complainant on administrative leave pending his
proposed removal because this was standard procedure in such cases. As for the notice that
Complainant was on administrative leave and had lost his security clearance, the AJ stated that
Complainant’s third line supervisor testified credibly that although the memo indicated it was
to be distributed to all security personnel, it was only distributed to the top managers in
accordance with standard procedures. The AJ’s rejected Complainant’s claim of a hostile work
environment, noting that the record is devoid of evidence that the Agency’s explanation for its
actions preceding Complainant’s demotion was unworthy of credence.

The Agency subsequently issued a final action adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that at no time prior to the commencement of the hearing
was he informed that he did not submit to payroll the signed SF-71 forms of his employees.
Complainant argues that the Notice of Proposed Removal did not mention him having SF-71
forms in his possession that he did not submit to payroll. Complainant maintains that the
report of investigation did not mention his withholding his employees’ SF-71 forms.
According to Complainant, the Employee Relations Specialist and his third line supervisor did
not produce records that the leave accounts of the individuals identified by the SF-71 forms
were corrected as they did not retain the SF-71 forms. Further, Complainant argues that the
Employee Relations Specialist and his third line supervisor produced no documentation or
information to establish that there had been an investigation into other supervisors’ time and
attendance recordkeeping practices. Complainant states that he sought to amend his complaint
after the hearing to include a claim that the Employee Relations Specialist and his third line
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supervisor provided false testimony during the hearing in reprisal for his EEO activity.
Complainant notes that the AJ denied his Motion to Amend.

In response, the Agency asserts that the AJ rejected Complainant’s claim that it fabricated the
charges against him based on the credible testimony of the Checkpoint Manager,
Complainant’s third line supervisor and the Employee Relations Specialist. According to the
Agency, the discovery of several SF-71 forms lead to the investigation into Complainant’s time
and attendance practices. The Agency notes that the investigation revealed and Complainant’s
demotion was based on twenty additional incidents where he had filed previously undiscovered,
inaccurate time and attendance reports within a six-month period. The Agency maintains that
although there is evidence that other Supervisory Transportation Security Officers committed
time and attendance mistakes, none of its witnesses had experienced a situation similar to this
where a Supervisory Transportation Security Officer had failed to submit a batch of SF-71
forms that were found in an inappropriate location, thus resulting in a number of
Transportation Security Officers being overpaid.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under the alleged bases. The Agency explained that it convened the pre-discipline discussion
with Complainant and placed him on administrative leave as a result of the investigation that
ensued from the discovery of a batch of SF-71 forms signed by Complainant pertaining to his
subordinates that had not been submitted to the timekeeper. The Agency stated that a
memorandum was issued alerting relevant security personnel that Complainant had been placed
on administrative leave, his security badge had been deactivated and he was not to contact
other employees. The Agency asserted that this was undertaken pursuant to standard operating
procedures in such situations. As for the Notice of Proposed Removal, the Agency stated that
it was issued based on Complainant exhibiting a lack of reasonable care in performing his
supervisory responsibilities and his failure to provide positive leadership. The Agency cited
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twenty instances between January 4, 2007, and June 20, 2007, where Complainant submitted
inaccurate time and attendance reports resulting in 160 hours of leave that was not charged to
his subordinates for their absences. The Agency subsequently decided to demote Complainant
rather than remove him from employment. We find that the Agency presented legitimate,
nondiscriminatory reasons for its actions in this matter.

Complainant attempts to establish pretext by claiming that the Agency fabricated the evidence
against him. In support of his position, Complainant states that the relevant SF-71 forms were
not produced as evidence and he was not informed prior to the hearing that they were the basis
for the actions taken against him. Complainant also argues that he should have been afforded
the opportunity to correct his mistakes since other Supervisory Transportation Security Officers
were allowed to remedy their errors in the time and attendance logs.

With respect to Complainant’s contention that the Agency fabricated evidence against him, we
note that the AJ found that the testimony of the Checkpoint Manager, Complainant’s third line
supervisor and the Employee Relations Specialist were credible. We discern no persuasive
evidence or argument that sufficiently challenges the AJ’s credibility determinations. Thus, we
do not doubt that Complainant, whether intentionally or inadvertently, nonetheless left a batch
of SF-71 forms that he had signed in a drawer rather than submit them to the timekeeper, thus
resulting in some of his subordinates not being charged leave that they had taken. With respect
to Complainant’s contention that he was not apprised before the hearing that these SF-71 forms
were the grounds for the investigation that led to the measures taken against him, we note that
the AJ was critical of the quality of the investigation, and the AJ also indicated to
Complainant’s attorney that discovery should have been undertaken. Any lack of awareness on
Complainant’s part as to how this matter arose is in part attributable to Complainant. We note
that the twenty incidents that served as the grounds for the Notice of Proposed Removal were
specifically enumerated in the Notice. We observe that frequently during the course of the
hearing and on appeal it appears Complainant attributes the Agency’s actions against him to his
alleged failure to submit the SF-71 forms. The record establishes that this error by
Complainant precipitated the investigation of his time and attendance recordkeeping.
However, the various measures taken by the Agency emanated from the discovery of the
twenty instances between January 4, 2007, and June 20, 2007, where Complainant failed to
forward a correct time and attendance report.

As for Complainant’s argument that he should have had the opportunity to correct his
mistakes, we concur with the AJ’s rationale that Complainant was not similarly situated to
other supervisors who had committed time and attendance log errors. Unlike these other
supervisors, Complainant was the only one who had such errors brought to light after an
investigation that was instigated by his failure to submit a batch of signed SF-71 forms to the
timekeeper. Agency officials further testified that the investigation disclosed Complainant had
a greater pattern of error than the comparisons in their time and attendance reports. We find
that Complainant has not established that the Agency’s explanation for its actions in this matter
was pretext intended to mask discriminatory intent in terms of disparate treatment or reprisal.
We further find as to Complainant’s claim of a hostile work environment that Complainant did
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not establish that discriminatory harassment occurred with regard to the alleged incidents.
Agency actions such as the pre-disciplinary interview, the placement on administrative leave
and the memorandum to relevant security personnel were in accordance with standard
operating procedures in similar situations. Additionally, we find that the AJ acted
appropriately and within her discretion when she denied Complainant’s Motion to Amend.

CONCLUSION
The Agency’s determination in its final action that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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).
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 11, 2015