0120131007
07-16-2015
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. 0120131007
Agency No. HS-TSA-00630-2011
DECISION
On December 31, 2012, Complainant filed an appeal from the Agency's March 27, 2012, final decision 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.1 The Commission 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 Officer at the Agency's facility at the Long Beach Airport in Long Beach, California.
On April 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when:
1. On February 23, 2010, during a meeting, an Assistant Federal Security Director (Assistant Director) stated that "you people must be removed from Federal Service."
2. On December 27, 2010, Complainant was issued a 3-day suspension.
A third event was added to Complainant's claim of harassment, namely:
3. On June 29, 2011, a Supervisor spoke to Complainant in a harsh manner and warned that he would be written up the next time he brought his personal jacket to the checkpoint.
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). In accordance with Complainant's request, 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.
This appeal followed. In his brief in support of his appeal, Complainant alleged additional events from December 5, 2011 to February 8, 2012. He asserted that these events provided additional support to his claim of harassment, retaliation and intimidation on the part of the Agency. He asked that the Commission find that he was subjected to discrimination and that we rectify the matter.
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").
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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; 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 Ctr. 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. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As to claim (2), we find that the Agency provided legitimate, nondiscriminatory reasons for issuing Complainant a three-day suspension. The Transportation Security Manager (Manager) averred that a co-worker (Co-worker) reported a claim that Complainant intimidated her and conducted himself in an unprofessional manner during an incident at the checkpoint. The Manager investigated the claim by the Co-worker, reviewed video surveillance of the event, and met Complainant to discuss the situation. The Manager determined that Complainant refused to cooperate or provide information. Based on the information before him, the Manager chose to issue a three-day suspension because of Complainant's conduct. In response, Complainant argued that it was the Co-worker who acted in an unprofessional manner. Further, he asserted that upper management sought to discriminate against him. Aside from his assertion, we find that Complainant failed to provide support to show that the Agency's reason for the suspension was discriminatory. Therefore, we conclude that Complainant did not establish that the suspension constituted unlawful discrimination.
Harassment
It is well-settled that harassment based on an individual's race is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) he belongs to the statutorily protected class; (2) he was subjected to unwelcome conduct related to his membership in that class; (3) the harassment complained of was based on race; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant argued that he was subjected to harassment when the Assistant Director questioned him about his overtime hours; the Supervisor spoke to him harshly about having his personal jacket at the checkpoint; and the Manager issued him a three-day suspension. As to the Assistant Director, he averred that he was tasked by the Agency to look into the overtime budget and to reduce it. The Assistant Director noted that Complainant had approximately 110 hours of overtime and he sought to find out who authorized Complainant's overtime use. Complainant argued that the Assistant Director referenced "you people" and claimed that the phrase was used to refer to Complainant's race. The Assistant Director denied threatening Complainant or using the phrase, "you people." The Assistant Director indicated that he was more concerned about the individual who authorized Complainant's overtime rather than Complainant's actions. As for the jacket, the Supervisor found Complainant's civilian jacket in the checkpoint. The Manager averred that Complainant was present at three briefings where employees were told they were not to bring civilian jackets to the checkpoint. Despite the information, Complainant took his civilian jacket to the checkpoint. After the incident, the Manager reminded Complainant that he could have his Agency jacket, a bottle of water and an umbrella in the closet at the checkpoint.
Upon review of the record, we find that Complainant had not established that the alleged incidents constituted a hostile work environment. Complainant did not show that the alleged events occurred because of his race. As such, we conclude that the Agency did not subject Complainant to unlawful harassment in violation of Title VII.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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 16, 2015
__________________
Date
1 Complainant indicated on appeal that he did not received a copy of the final decision until December 7, 2012, and provided emails to support his assertion. In addition, the EEO Specialist stated that the Agency's final decision was emailed to Complainant. Complainant stated that he did not receive the email with the final decision. As such, on November 26, 2012, the EEO Specialist indicated that she sent a copy of the decision to Complainant's address of record.
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01-2013-1007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131007