Dan V.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Jul 22, 2020

2019003499 (E.E.O.C. Jul. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dan V.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019003499 Hearing No. 520-2017-00226X Agency No. HS-TSA-24285-2015 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 9, 2019 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Federal Air Marshall (FAM), SV-1801-I, with the Agency’s Federal Air Marshall Service (FAMS) in the Boston Field Office located in Chelsea, Massachusetts. On June 28, 2015, Complainant initiated EEO counseling. On September 8, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Native American), disability (neck injury), and age (40) when: (1) on unspecified dates, management denied Complainant the opportunity for career 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019003499 2 advancement to include in-position increases, cash awards and specialty assignments; (2) on May 20, 2015, a Supervisory Federal Air Marshal (SFAM) said to Complainant on his first day of training, “I guess you are going to go home and speak a variety of languages to your kids;” and (3) on June 10, 2015, SFAM was extremely insensitive when Complainant told him that other employees were slandering him regarding his neck injury. After 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. Prior to the hearing that was held on April 9, 2019, the AJ dismissed Claim 1 for untimely EEO Counselor contact.2 The AJ issued a decision on April 12, 2019, finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. FACTUAL BACKGROUND FAMs are law enforcement officers who are deployed on domestic and international passenger flights to protect these flights by deterring and countering terrorist activity, aircraft piracy, and other crimes. FAMs also conduct law enforcement operations in airports and other transportation systems. Complainant injured his neck in 2004, which required a spinal fusion and the insertion of a cadaver bone and metal plate in his neck. He still has nerve damage. Since the neck injury, he has been limited in his ability to run and perform some physical tasks requiring him to reach over his head such as pull-ups. Complainant had tensions in his relationship with a Supervisory Federal Air Marshal (SFAM) (Caucasian, no disability, 58 years old) after Complainant injured his neck in 2004.3 In March 2015, though still officially employed as a FAM in the Boston Field Office, Complainant began a new assignment as a training instructor, which involved training other FAMs in basic law enforcement skills, firearms, physical fitness, mission-related tactical training, defensive measures, legal and investigative and emergency medicine. SFAM who had recently returned from working in Washington, D.C., and was working in training, began supervising Complainant in March 2015. One of Complainant’s co-workers (CW1) (Caucasian, no disability, 40 years old) made comments in April 2015 questioning how Complainant was going to perform his new training position, such as the training drills, with his neck injury. 2 We affirm the AJ’s dismissal of Claim 1 as discrete acts because these issues occurred more than two years before the alleged harassment alleged in Claims 2 and 3 and were not timely raised with an EEO Counselor. See Willa B. v. Dep’t of State, EEOC Request No. 0520180528 (Oct. 18, 2018); Nat’l R.R. Passenger Corp. v Morgan, 536 U.S. 101, 118 (2002). These matters, however, will be considered as evidence in support of Complainant’s overall hostile work environment claim. 3 SFAM left the FAMS Boston office in November 2012 to work at FAMS Headquarters in the Washington, D.C. area. SFAM returned to the Boston office in December 2014 as a squad leader. In January 2015, SFAM’s job duties were changed and he became a supervisor of training. 2019003499 3 On or about April 30, 2015, another co-worker (CW2) (Caucasian, no disability, 46 years old), informed Complainant of CW1’s comments, which Complainant did not personally hear. Complainant did not address these comments with CW1 when learning of them, but instead waited a few months to discuss them with CW1. Complainant has children whose race he describes as half-Mexican. SFAM knew that Complainant’s children are half-Mexican and was under the impression that the children spoke Spanish. On or about May 19, 2015, before Complainant was going to teach his first training class, SFAM stated, “I guess you are going to go home and speak multiple languages to your children.” During the training class, SFAM made comments to Complainant, in front of the class, about the fact that it was Complainant’s first class and about sweating, and he called him “Big Ben.” Following his training session, SFAM commented to Complainant that his face was red, which may have had to do with the fact that he was half-Native American. Complainant felt uncomfortable and singled out by these comments. He felt that SFAM was trying to get inside his head. Complainant did not inform SFAM that he felt harassed by these comments after they were made. In May 2015, Complainant did not report to anyone in management about these comments. Complainant spoke with SFAM on June 10, 2015 about allegedly harassing comments or actions by co-workers, but Complainant did not provide any names, dates, or other specifics. Complainant did not want to feel like he was “dragging people through the mud.” So, he provided general information about it and did not provide SFAM any names or dates. On or around June 29, 2015, Complainant reported to the Assistant Special Agent in Charge (ASAC) (Caucasian, no disability, 40 years old) about SFAM’s comments and general treatment of Complainant. On June 29, 2015, based on Complainant’s allegations, ASAC initiated an investigation, which is referred to within FAMS as an Incident Tracking Report (ITR). ASAC also removed SFAM from Complainant’s chain of command the same day. Complainant received a three percent salary raise (in-position increase) in July 2015 and an on- the-spot award in August 2015. In October 2015 Complainant received his FY 2015 annual performance evaluation, which rated him as “Exceeded Expectations.” Complainant was a successful training instructor until he left the training unit in April 2017. CONTENTIONS ON APPEAL On appeal, Complainant contends that he was subjected to conduct that was severe and pervasive. Complainant claims that he was constantly degraded and that someone in his training unit spread false and disparaging comments to minimize or force him out of the unit. Complainant argues that the record evidence shows that he was subjected to a hostile work environment. Accordingly, Complainant requests that the Commission reverse the final order. 2019003499 4 ANALYSIS AND FINDINGS 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. Nat’l Labor Relations Bd, 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 testimony or testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems. Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris) at pp. 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). 2019003499 5 Here, the AJ concluded that SFAM’s statement regarding Complainant speaking to his children in multiple languages; his ridiculing comments, including remarks regarding his sweating, and calling him “Big Ben;” and his comment connecting Complainant’s red face following exercise with his being Native American were inappropriate and understandably upsetting to Complainant. Upon review, the Commission finds that substantial record evidence supports the AJ's conclusion that Complainant failed to show that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. In so finding, the Commission acknowledges that these incidents alleged by Complainant are highly offensive and objectionable. Nevertheless, the AJ noted that the inappropriate language by SFAM occurred on a single day, or, at most, two days and consisted of three or four harassing comments. Nonetheless, even assuming that the conduct was sufficiently severe or pervasive to establish a hostile work environment, substantial record evidence reveals that as soon as Complainant informed ASAC about the comments, on June 29, 2015, she immediately initiated an ITR and removed SFAM from Complainant’s chain of command. There is no evidence that any similar conduct recurred. Additionally, Complainant asserted that SFAM was insensitive when, on June 10, 2015, Complainant told him that he was being harassed by co-workers.4 Complainant admitted, however, that he did not provide SFAM, or anyone else in management, with any names, dates, or other specifics pertaining to the coworker comments. After reviewing the record and considering arguments on appeal, the Commission finds that the AJ made reasonable credibility determinations, which are not contradicted by objective evidence, and his factual findings are supported by substantial evidence. As a result, the Commission finds that substantial record evidence supports the AJ's finding that Complainant has not shown that he was subjected to a discriminatory hostile work environment. Accordingly, the Commission finds that Complainant has not established that he was subjected to discrimination or a hostile work environment as to all claims alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record. 4 The only incident involving coworker comments that Complainant testified to at the hearing involved CW1, who made comments in April 2015 questioning how Complainant was going to perform his new training position, such as the training drills, given his neck injury. Complainant did not address these comments with CW1 when learning of them, but instead waited a few months to discuss them with him. 2019003499 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2019003499 7 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 Complainant’s 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 July 22, 2020 Date