0120132686
07-15-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120132686
Hearing No. 450-2013-00007X
Agency No. HSTSA000642012
DECISION
On July 2, 2013, Complainant filed an appeal from the Agency's May 28, 2013, final decision (FAD) concerning his equal employment opportunity (EEO) 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Inspector (TSI) at the Agency's Dallas/Fort Worth International Airport facility in Coppell, Texas.
On November 29, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), color (White), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On November 29, 2010, Complainant was issued a Letter of Counseling (LOC):
2. On June 1, 2011, Complainant's Lead Inspector (LI: black, black) stated, "You listen to me you little motherfucker, I'm the fuckin' lead and it is my job, not yours, and you aren't telling me shit!";
3. On August 18, 2011, management instructed Complainant to attend a counseling session with an EEO Counselor and watch the movie "Remember the Titans"; and
4. In September 2011 Complainant was subjected to a sham internal investigation and was asked questions about his prior EEO activity1.
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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the decision found that with regard to claim 1, With regard to claims 1 and 3, the Agency found that management officials articulated legitimate nondiscriminatory reasons for their actions and Complainant failed to establish that such reasons were pretextual. With regard to claim 2, the Agency found that LI denied making the comments and further found that the alleged comments were insufficiently severe to constitute harassment. Finally, with regard to claim 4 (identified as 4 and 5 under "Claims at Issue" in the final order but mistakenly identified as 5 and 6 in the body of the decision) the Agency found that the claim failed to state a claim because it constituted a prohibited collateral attack on an Agency investigation.
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. (November 9, 1999) (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").
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established prima facie cases of discrimination and reprisal
The record shows that Complainant filed an earlier EEO Complaint against the Agency on April 21, 2008 alleging discrimination based on race when he was not selected for the position of TSI and L1 was selected instead. The parties entered into a Settlement Agreement which provided, among other things, that Complainant be placed in a similar TSI position. Complainant's reprisal allegation contends that he incurred the actions alleged in claims 1 through 4 in retaliation for his prior EEO complaint.
With regard to claim 1, the Agency found that it had articulated a legitimate nondiscriminatory reason for its action. The LOC was signed by Complainant's immediate Supervisor (S1 Caucasian, white) and it states that it was issued because;
On August 24, 2010, [Complainant] sent an email directly to the [Agency] Canine trainers and also to the Field Canine Coordinator where [Complainant] made an allegation against [LI] claiming she was letting her dog show aggression. [Complainant] also made an irresponsible comment stating that "no one here locally in her chain of command has canine training experience and will not know the effect this will cause in the future." Although [Complainant] forwarded me the email, [Complainant] did not offer me the opportunity to address the issue. It is [Complainant's] duty and responsibility to bring any issues and or concerns directly to [his] supervisor. [Complainant is] reminded to use [his] chain of command.
Report of Investigation (ROI) Exhibit F-14.
Complainant on appeal maintains that S1 "testified that he believed that there was no basis for the LOC and that [the Assistant Federal Security Director] (RMO1: Caucasian, white) ordered [S1] to issue the LOC in an attempt to harass and retaliate against [Complainant]." Complainant's Appellate Brief, p. 5. In his brief, Complainant cites to an affidavit by S1 "in the official proceedings record filed January 24, 2013." A review of the record, however, reveals no such statement by S1. We note instead that the record does contain an affidavit from S1 dated June 2, 2012, wherein S1 denied being forced to issue the LOC and denied that it was issued to harass Complainant. See ROI, Exhibit F-8. Furthermore RMO1 denied ordering S1 to issue the LOC, denied that the LOC was issued for discriminatory or retaliatory reasons, and concurred with S1 that it was issued because Complainant went outside his chain of command to complaint about L1. See id., Exhibit F-2. If Complainant has a copy of any affidavit by S1 alleging that he was forced by RMO1 to issue the LOC to harass and retaliate against Complainant, he has not submitted such evidence to this Commission. Without such evidence we are unable to find that Complainant has established, by a preponderance of the evidence, that the LOC was issued for discriminatory or retaliatory reasons. We note in this regard that Complainant has not shown that RMO1 was the same management official identified by Complainant in his earlier EEO complaint. Furthermore, given that Complainant filed the earlier complaint in April 2008 and was not issued the LOC until August 2010 Complainant has not established a nexus between his EEO activity and the issuance of the LOC.
With regard to claim 3, S1 averred that he instructed both Complainant and L1 to attend counseling:
with the Model Workplace Coordinator, not the EEO Counselor...These two employees were having continuous difficulties in the workplace that were negatively affecting them as well as others. The counseling was an effort to assist them both in improving their relationship and ability to get along. There are only three TSIs and they have to work together.
ROI, Exhibit F-8.
L1 confirmed that she was also required to attend the counseling and was also issued a LOC for the incident referred to in claim 2. See ROI, Exhibit F-10. We find that Complainant has not shown that he was required to attend counseling for discriminatory or retaliatory reasons.
With regard to claim 2, we note that in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Following a review of the record we agree with the Agency's finding that the alleged comments by L1 were insufficiently severe to state a claim of harassment.
With regard to claim 4, the Agency found that the claim constituted a collateral attack on the Agency's investigation. Complainant argues that, under Bryant v. Department of Justice, EEOC Appeal No. 0120113916 (January 21, 2102), where a complainant, as here, is not disputing the outcome of an investigation but is alleging that he was targeted for investigation because of his prior EEO activity, such an allegation states a valid claim of reprisal. We note that the investigation did not result in any adverse action against Complainant and so we agree that Complainant is not disputing the investigation's outcome but the fact that he was targeted, and hence his claim states a valid claim of reprisal2. We note, in this regard that we interpret the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). We further find, however, that the Agency articulated a legitimate nondiscriminatory reason for its action when the Assistant Federal Security Investigator for Law Enforcement (AFS: Caucasian, white) who conducted the investigation averred that it was conducted because of the conflict between Complainant and L1. See ROI, Exhibit F-4. Specifically AFS averred that:
The purpose of the management inquiry was to assess the professional working relationships between and among the K9 Handlers and their operational impact; determine the facts surrounding incidents of work related conflict between members in the past 12 months; any violations of Management Directives, policy, or procedure; and provide Findings of Fact and Conclusions.
Id.
Following a review of the record we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for its action is a pretext to mask intentional discrimination or reprisal. While Complainant contends that the scope of the investigation went beyond what was necessary to assess the professional relationship between himself and L1, Complainant has not shown a nexus between the actions of AFS in September 2011 and Complainant's prior EEO activity in April 2008. It is undisputed that AFS was not involved in Complainant's prior EEO activity and only became aware of that activity at the outset of his investigation. See id., p. 3. Furthermore, AFS was directed to conduct the investigation by the Deputy Federal Security Director (RMO2: Caucasian, white). Complainant has not alleged RMO2 was involved in his prior complaint or that RMO2 retaliated against him. Finally, when asked whether or not he was involved in the earlier EEO complaint, RMO2 responded "Not directly, but I was interviewed by an investigator about the procedures used in promotions." ROI, Exhibit F-3.
We note that Complainant, on appeal, asks that we remand this matter and direct the Agency to supplement the record with additional documentation to enable Complainant to establish a nexus between his prior EEO activity and the actions at issue herein. Complainant argues that the Agency refused to submit:
The entire personnel files including application, resume, disciplinary records, letters of counseling or guidance, and performance evaluations and/or appraisals, departmental files, grievance files and payroll change records for each of the past or present canine handlers . . . These items are necessary for Appellant to more clearly demonstrate that his on-the-job performance scores were much higher than the other [coworkers] and, consequently, that his previous canine training and history were investigated without a legitimate reason.
Complainant's Appeal Brief, pp. 23-4.
Such an argument, however, ignores the fact that neither AFS nor RMO2 said that the reason for the investigation was due to Complainant's performance scores. Instead, they averred that the investigation was conducted because of ongoing workplace conflict between Complainant and L1. See ROI, Exhibits F-3 & 4. As such Complainant has not shown how the personnel files of other coworkers are relevant to this complaint.
Complainant further argues that L1 "received preferential treatment compared to the other [similarly situated coworkers]. She received substantial bonuses, raises, and travel opportunities that dwarfed the bonuses, raises, and travel opportunities afforded" her coworkers and that "these employees' personnel files are necessary to demonstrate the pattern, existence, and continuation of disparate treatment." Complainant's Appeal Brief, p. 24. Such allegations, however, are beyond the scope of this complaint. We note in this regard that Complainant fails to identify a specific harm that he sustained. Complainant cannot pursue a generalized grievance that a member of one protected group is afforded benefits not offered to other protected groups, unless he further alleges some specific injury to himself as a result of the alleged discriminatory practice. See Warth v. Seldin. 422 U.S. 490, 499 (1975). Such an allegation constitutes a generalized complaint and hence fails to state a claim. See id. See also Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508 (September 11, 1997); Henderson v. Department of Homeland Security, EEOC Appeal No. 01A42129 (October 24, 2004). In his Formal Complaint, Complainant makes no mention of any bonuses, raises and travel opportunities he was denied and hence we discern no basis to remand this complaint to supplement the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons for its actions were pretextual or otherwise showing that discrimination or reprisal occurred. We therefore AFFIRM the FAD.
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).
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
July 15, 2015
__________________
Date
1 We note that the FAD characterized this claim differently, breaking it up into two allegations. We find that the claim is more appropriately characterized as above.
2 We note that Complainant does not state a valid claim of disparate treatment based on race or color because being the subject of an investigation does not render him aggrieved. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
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0120132686
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132686