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

Equal Employment Opportunity Commission

Aug 14, 2015

01-2014-0411-0500 (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. 0120140411

Hearing No. 430-2012-00228X

Agency No. HS-TSA-02003-2011

DECISION
Complainant filed an appeal from the Agency’s final order dated October 18, 2013, 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 discrimination in reprisal for prior EEO activity when
on September 20, 2011, he received a 13-day suspension. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). On September 24, 2013, 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
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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.
In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged suspension. During the relevant time period at issue, Complainant was
employed as an Administrative Officer at the Agency’s Norfolk International/Newport News
Airport/Williamsburg Airport, Virginia. As the Administrative Officer, Complainant was
responsible for supervising his staff and providing advice on human resources, finance, and
procurement.

Complainant’s first level supervisor (S1) stated that S1 issued Complainant a notice of
proposed 14-day suspension on July 1, 2011, for his failure to follow directions regarding
procurement of Pelican cases for “go kits;” displaying a lack of candor when asked about his
efforts to obtain the Pelican cases; and engaging in inappropriate and arguably discriminatory
behavior towards his female subordinate employee. On September 20, 2011, Complainant’s
second level supervisor (S2), concurring with S1’s proposal, upheld the suspension but
mitigated it to 13 days. Specifically, S1 indicated in the notice that on April 26, 2011,
Complainant was instructed by S2 to send emails to other airports asking if they had any
“Pelican cases” which would be used to store the items contained in “go kits”1

in order to
prepare for the upcoming hurricane season. Complainant, stated S1, however failed to procure
the cases as instructed or inform S2 that he had not received a positive response for obtaining
the cases. Complainant acknowledged that he did not update S2 about the status of the Pelican
case requirements in a timely manner because the staff meeting was cancelled several weeks in
a row after April 26, 2011. Complainant, however, did not explain why he did not email, call,
or go see S2 rather than waiting until the staff meeting to update S2.
S2 further stated that when S2 did not hear anything from Complainant concerning the cases,
S2 contacted him on May 19, 2011, asking him to send the same request out nationwide and
also check with the local airports in Richmond and Newport News in Virginia. Later on the

1 The “go kits” contained items such as flashlights, batteries, ropes, tarps, water, and food.
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same day, S2 asked Complainant if he contacted two identified officials in the local airports as
S2 requested. Complainant responded that he did contact them. On the next day, May 20,
2011, S2 sent an email to Complainant asking him again to confirm he actually checked with
the identified officials for availability of the cases of which he confirmed again. Later on May
20, 2011, one of the identified officials emailed S2 denying the fact that Complainant contacted
him regarding Pelican cases. Complainant acknowledged that he did not contact the identified
officials on May 19 or 20, 2011, as S2 requested to do so. Complainant however maintained
that S2 misunderstood thinking he talked to those officials recently in May, 2011, when in fact,
he was affirming his contact with them last summer of 2010, about the cases. S2 noted that
Complainant ultimately procured four Pelican cases from Lansing, Michigan, on May 27,
2011, but they were too small. Complainant does not dispute this.

S1 also indicated in the notice that one of Complainant’s subordinates notified S1 that
Complainant made some offensive comments during her mid-year review on June 2, 2011.
Specifically, the subordinate claimed that during the relevant time period at issue, Complainant
told her that she would not be assigned to work with an identified Human Resource Specialist
because her husband was in the military and it was unclear whether her husband would be
deployed outside of the area and she also would not be able to attend training because of
difficulties securing childcare for her child in her absence. S1 stated that management
immediately appointed an Inquiry Officer to investigate the foregoing claims. After
interviewing the individuals involved with the incidents and reviewing Complainant’s
attorney’s written response thereto, the Inquiry Officer completed the investigation of the
subject claims and found the subordinate credible and found nothing to refute her claims.

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 suspension. It appears and
Complainant had poor working relationship with a number of his subordinates and his
supervisors, including other officials. We find that even if S2 misunderstood Complainant’s
affirmations of contacting the local airport officials about the Pelican cases, the
misunderstanding was not motivated by 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 action was motivated by discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.2

2 We note that Complainant appealed the Agency’s final order, dated October 9, 2012, finding
no discrimination with regard to his prior complaint, Agency No. HS-TSA-01345-2010,
concerning disciplinary actions and harassment claim occurring from September, 2009, to
March 28, 2011, which is pending in our office under EEOC Appeal No. 0120130430.

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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.

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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 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