Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 14, 2015

01-2013-0430-0500 (E.E.O.C. Aug. 14, 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
(Transportation Security Administration),
Agency.

Appeal No. 0120130430

Hearing No. 430-2011-00359X

Agency No. HS-TSA-01345-2010

DECISION
Complainant filed an appeal from the Agency’s final order dated October 9, 2012, finding no
discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND
In his complaint, Complainant alleged that:

(1) He was subjected to harassment based on disability (vision impairment: Rigents
Pigmento Degenerative Disease) and in reprisal for prior EEO activity when:
a. Members of the Federal Security Director’s staff engaged in an improper
working relationship, culminating in threats against his sustained employment
and performance ratings.
b. The Agency issued him a Letter of Reprimand (LOR) in September, 2009.
c. The Agency placed him on a Performance Improvement (PIP) in December,
2009.

(2) He was subjected to discrimination based on disability (vision impairment: Rigents
Pigmento Degenerative Disease) when he was denied a reasonable accommodation.
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(3) He was subjected to discrimination in reprisal for his current EEO activity when:
a. The Agency suspended him from March 17, 2011, through March 28, 2011.
b. Upon returning from his suspension, the Agency no longer invited him to Senior
Management Meetings.
c. The Agency placed him on a PIP on March 28, 2011.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On August 16,
2012, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, 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 court’s function 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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Moreover, despite Complainant’s contentions on appeal, we find the
record was fully developed.
Initially, we note that the AJ stated that Complainant did not mention or raise his disability
claims in response to the Agency’s motion for summary judgment. Furthermore, Complainant
does not dispute the Agency’s finding of no discrimination based on his disability with regard
to his complaint, including claim (2), on appeal. Accordingly, we do not discuss
Complainant’s disability claim, including claim (2), in this decision.1

1 Complainant indicated during the investigation of the instant complaint that his disability did
not affect his ability to perform his essential job duties but affected his ability to drive at night
and through tunnels. He also indicated that he requested and was granted his requested
accommodations, i.e., not being assigned to job duties which required him to drive at night or
through tunnels. The Agency also indicated that it further accommodated Complainant’s

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Turning to Complainant’s reprisal claims, assuming arguendo that he had established a prima
facie case of discrimination, the AJ determined that the Agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents. During the relevant time period at issue,
Complainant was employed as an Administrative Officer, J-Band, at the Agency’s Norfolk
International Airport, Norfolk, Virginia. The record indicates that Complainant had been in
that position since July 15, 2002. As the Administrative Officer, Complainant was responsible
for supervising his staff and providing advice on human resources, finance, and procurement.

With regard to claim (1), Complainant claimed that in October, 2007, he reported to his first
level Supervisor (S1) that one of his subordinates, a female Human Resource Specialist (HRS),
was having an affair with a male, Deputy Assistant Federal Security Director-Screening
(DAFSD-S).2

Since then, stated Complainant, he had been harassed by S1. It is noted that
Complainant believed that the foregoing relationship was improper and claimed that it created a
hostile work environment for him. S1 denied Complainant reported the foregoing relationship
to S1 in October, 2007. S1 indicated that S1 first learned that Complainant had an issue with
the relationship was at the time of he was issued the September 2009 LOR, described herein.
S1 denied harassing Complainant, culminating in threats against his sustained employment and
performance ratings as he alleged.
Complainant’s second level supervisor (S2) indicated that Complainant complained to S2 in
June, 2010, that he had been subjected to harassment by S1. S2 told Complainant that S2
would investigate the matter and S2 did so by immediately initiating a Management Inquiry.
S2 indicated that the Agency’s Office of Inspections interviewed many employees and
conducted an investigation of Complainant’s claim but found no harassment on the part of S1
as he alleged.

The AJ noted that Complainant’s reporting the subject affair was not activity protected by Title
VII. The record indicates that S1 was Complainant’s first level supervisor from October,

disability by changing his hours of duty so that he would not have to drive to and from work in
the dark.
2 The Agency indicated that since the HRS was outside of the DAFSD-S’s supervisory chain of
command, they kept the relationship outside of the work environment, and their relationship at
work was always very professional, their relationship was not in violation of the Agency’s
policy. The Agency, nevertheless, investigated Complainant’s foregoing claim via its Office of
Inspections. After the investigation, the Office of Inspections found that Complainant
erroneously claimed that the HRS and the DAFSD-S engaged in a sexual activity in the Agency
office and that Complainant failed to cooperate and was not fully “forthcoming” with the
investigation. Based on the Office of Inspections’ findings, the Agency issued Complainant a
notice of decision on January 31, 2012, to remove him from his employment for lack of candor
and unprofessional conduct. The record indicates that Complainant’s removal was upheld by
the Merit Systems Protection Board, in Docket Number DC-0752-12-0294-I-1, on July 31,
2012. We note that Complainant’s removal is not a live action in the instant complaint.
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2007, to September, 2010. We note that although Complainant claimed that the HRS appeared
to be receiving preferential treatment, he provided no evidence to support such other than the
fact that the HRS visited the DAFSD-S during working hours and took leave at the same time
as the DAFSD-S. There is no evidence that Complainant had any issues with the HRS’s work
performance. Upon review, we agree with the AJ that Complainant provided nothing to
support his bare allegations that the HRS and the DAFSD-S relationship created a hostile
environment for himself or anyone else in the office.

S1 indicated that Complainant had poor management and supervisory skills, treated his
subordinates poorly, and was untruthful to S1. S1 stated that S1 received complaints from
other administrative staff concerning one of Complainant’s subordinates’ attendance issues and
her not working her share of the workload. S1 indicated that S1, then, discussed the issues
with Complainant and found out that he failed to do anything about the problem employee.
Complainant does not dispute this. As a result of the foregoing incidents, S1 indicated that on
August 27, 2008, S1 issued a letter of counseling to Complainant who became confrontational
and made unprofessional remarks to S1. Complainant does not contest this letter of counseling
in the instant complaint.

S1 stated that S1 issued Complainant the LOR on September 29, 2009, due to his failure to
follow instructions and his lack of candor and after considering the above letter of counseling.
Specifically, S1 stated that despite the instructions, Complainant failed to submit his
assignment in a correct format in a timely manner and he lied to one of his subordinates that S1
approved the change in her assignment when S1 did not. Despite Complainant’s contentions,
the record indicates that on September 16, 2009, S1 and S2 met with him concerning his
failure to submit the above assignment correctly and timely. S1 further stated that
Complainant subsequently submitted the assignment using the correct format, but there were
multiple mistakes and S1 had to ask another employee to meet with him to help him make the
corrections. Complainant does not dispute this.

S1 stated that on December 1, 2009, S1 issued Complainant the PIP due to continuing issues
with his poor performance and his poor working relationship with his subordinates.
Complainant claimed that S1 blamed him and held him accountable for his subordinates’ poor
performance and their failure to follow instructions. We note that it appears that Complainant
disagreed with S1’s managerial style and holding him, as a supervisor, accountable for his
subordinates’ performance.

With regard to claim (3), Complainant’s new supervisor (NS1), who became Complainant’s
first level supervisor since October, 2010, stated that NS1 issued Complainant a notice of
proposed 10-day suspension on February 9, 2011, due to his repeated failure to follow
direction, failure to exercise courtesy and tact, harassing other employees, and lack of candor.
Specifically, NS1 indicated that an identified employee reported to NS1 that in November,
2010, while she and Complainant were talking, Complainant told her not to interrupt him or he
will “slap” her hand. NS1 stated that other employees corroborated the incident. NS1 also
indicated that Complainant failed to timely submit an identified official’s monthly mileage
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reports to a designated employee as instructed to do so and then lied to NS1 that he did so
when in fact he did not do so. NS1 stated that Complainant also failed to procure requested
supplies from June to August, 2010, on six specifications. Therein, NS1 stated that he met and
had discussions with Complainant on November 16, 2010, January 12, 2011, and January 18,
2011, about the foregoing issues and considered the September 29, 2009 LOR, described
earlier, in issuing the suspension at issue. S2 concurred with NS1’s proposal and upheld the
suspension but mitigated it to nine days.

With regard to staff meetings, NS1 indicated that since there were two staff meetings each
Tuesday, Complainant was told to attend the second meeting which was basically the same
information discussed during the first meeting. NS1 stated that Complainant did not have a
security clearance to attend the first meeting. NS1 stated that Complainant was placed on the
March 28, 2011 PIP because his performance and conduct had not improved sufficiently
despite numerous counseling sessions NS1 had with him.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. It appears and
Complainant had poor working relationship with a number of his subordinates and disagreed
with his new supervisors’ management style, i.e., making all employees, including him,
accountable for their performance. With regard to his claim of harassment, we find that
Complainant failed to establish the severity of the conduct in question or that it was related to
any protected basis of discrimination. Furthermore, we find that Complainant failed to show
that he was treated less favorably than a similarly situated employee under similar
circumstances. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s actions were motivated by discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.3

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:

3 We note that Complainant appealed the Agency’s final order, dated October 12, 2013,
finding no discrimination with regard to his subsequent complaint, Agency No. HS-TSA-
02003-2011, concerning his 13-day suspension, issued on September 20, 2011, which is
pending in our office under EEOC Appeal No. 0120140411.
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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).
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
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time limits for filing a civil action (please read the paragraph titled Complainants 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

August 14, 2015
Date