Hassan B.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 19, 2020

2019002204 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hassan B.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019002204 Hearing No. 520-2017-00616X Agency No. HSTSA268702016 DECISION On December 15, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the EEOC Administrative Judge’s November 16, 2018 decision to dismiss claims 2 through 15 of Complainant’s complaint. At the time of his appeal, Complainant acknowledged his hearing request withdrawal in favor of a Final Agency Decision (FAD) and noted that he had not yet received the FAD. The Agency issued a FAD on March 9, 2019, final decision concerning Complainant’s 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issue presented is whether the AJ appropriately dismissed claims 2 through 15 for untimely EEO Counselor contact and whether Complainant has shown by a preponderance of the evidence 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. 2019002204 2 that the Agency subjected him to discrimination based on his protected classes and in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer at the LaGuardia Airport in East Elmhurst, New York. On August 1, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On December 1, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of race (Caucasian), sex (male), color (white), disability(mental), and reprisal for prior protected EEO activity under when: 1. on August 17, 2016, Complainant was not selected for a Master Transportation Security Officer (TSO)/Behavior Detection Officer (BDO) position, under Vacancy Announcement LGA-16-155258; 2. on July 25, 2016, Complainant was denied an internal promotion opportunity2; 3. on May 2, 2016, Complainant was not selected for a Supervisory TSO position, under Vacancy Announcement LGA-16-111000; 4. on May 1, 2016, Complainant was not selected for a Master TSO position, under Vacancy Announcement LGA-16-113244; 5. on March 10, 2016, Complainant was not selected for a Master TSO/BDO position, under Vacancy Announcement LGA-16-995960; 6. on March 8, 2016, Complainant was not selected for a Transportation Security Inspector/Explosive Detection Canine Handler position, under Vacancy Announcement LGA-16-996010; 7. on February 25, 2016, Complainant was not selected for a Program Assistant position, under Vacancy Announcement LGA-16-990688; 8. on January 13, 2016, Complainant was not selected for a Master TSO/BDO position, under Vacancy Announcement LGA-15-946214; 9. on January 11, 2016, Complainant was not selected for a Human Resources Assistant position, under Vacancy Announcement LGA-15-975656; 2 In his affidavit, Complainant clarified that claim 2 occurred in 2013, not 2016. 2019002204 3 10. on November 20, 2015, Complainant was not selected for a Program Assistant position, under Vacancy Announcement LGA-15-958926; 11. on October 6, 2015, Complainant was not selected for two STSO positions, under Vacancy Announcement HPN-15-946238 and LGA-15-956233; 12. on August 24, 2015, Complainant was not selected for a Transportation Security Inspector position, under Vacancy Announcement LGA-15-930170; 13. on January 13, 2015, Complainant was not selected for a Master TSO/BDO position, under Vacancy Announcement LGA-14-850038; 14. on July 22, 2014, Complainant was not selected for a Master TSO/BSO position, under Vacancy Announcement LGA-14-787814; and, 15. from March 2012 through July 2012, and August 2012, through March 2013, Complainant did not receive proper training, training materials, or guidance. The Agency accepted the claims for investigation. The Commission only discusses claim 1. The investigative record reflects the following pertinent matters relating to claim 1. On August 4, 2016, the Agency posted the Master Transportation Security Officer/Behavior Detection Officer (TSO/BDO) position, under Vacancy Announcement LGA-16-155258. The posting was closed on August 17, 2016. Complainant was ultimately not selected for the position. In his affidavit, Complainant could not recall when he learned of his non-selection. The Deputy Assistant Federal Security Director (RMO) (Hispanic, white, male, no disability, prior EEO activity) explained there was no selection made for the TSO/BDO position, posted under Vacancy Announcement LGA-16-155258 because the announcement was closed. RMO explained the posting went live, but then the Agency issued a hiring freeze in October 2016, which effectively canceled the posting. RMO stated that no one was selected. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). On October 1, 2018, Complainant filed an amendment request to add additional claims of non- selections. On October 3, 2018, the Agency filed a motion to dismiss claims 2 through 15 as untimely pursuant to 29 C.F.R. § 1614.107(a)(1). On November 16, 2018, the AJ granted the Agency’s motion. The AJ also denied Complainant’s amendment request as the claims were additional instances of non-selections that were not like or related to the accepted claim 1. On November 26, 2018, Complainant withdrew his request for a hearing and requested a Final Agency Decision (FAD). Due to the federal government shutdown, decisions were delayed. On or about December 15, 2018, Complainant sent correspondence to the Commission expressing his desire to appeal the AJ’s November 16, 2018 decision granting the Agency’s dismissal motion. 2019002204 4 On March 9, 2019, based on Complainant’s withdrawal of his hearing request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency affirmed the AJ’s decision to dismiss 14 of 15 claims as untimely and found no discrimination regarding the non-selection raised in claim 1. CONTENTIONS ON APPEAL In his December 15, 2018 appeal, Complainant submitted a lengthy request arguing for the reversal of the AJ’s November 16, 2018 decision dismissing 14 of his 15 claims for untimely EEO Counselor contact. Complainant argued that because he was subjected to constant harassment until he left the Agency, all of his claims should be considered timely. Complainant did not submit an additional brief upon receipt of the Agency’s March 4, 2019 FAD. The Agency asserted that the AJ’s prior dismissal of claims 2 - 15 was appropriate and should not be disturbed. Additionally, the Agency asserted that it had previously articulated a legitimate, nondiscriminatory reason why Complainant was not selected for the TSO/BDO position in question. Moreover, the Agency argued that Complainant failed to demonstrate that the reason was pretext for discrimination. Ultimately, the Agency requested for the Commission to affirm its FAD. STANDARD OF REVIEW 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. (Aug. 5, 2015) (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”). ANALYSIS AND FINDINGS Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. 2019002204 5 EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Here, Complainant contacted the EEO Counselor on August 1, 2016, regarding allegedly discriminatory incidents that occurred from March 2012 until May 2, 2016, these are well beyond the 45-day time limitation. Each incident of non-selection and the allegedly denied internal promotion opportunity were all discrete acts that triggered the 45-day limitation period once Complainant became aware of the non-selections and the denial of the promotional opportunity. We note that on appeal, Complainant argued that all his claims should have been accepted under a theory of hostile work environment. However, as we have noted these claims were all discrete acts and are therefore not actionable as part of a hostile work environment claim unless accompanied by abusive conduct or language, of which there are no allegations or evidence in this case. Rotarius v. Dep't of the Treasury, EEOC Appeal No. 01A45118 (March 29, 2006). Thus, Complainant has not shown that these discrete events were in fact part of a pattern of harassment. Additionally, Complainant argued that the AJ had inappropriately denied his request to amend his complaint. We note that Complainant’s amendment requests consisted of additional untimely non- selections. Accordingly, we determine that the AJ appropriately dismissed claims 2 through 15 as untimely, and that the AJ appropriately denied Complainant’s October 1, 2018 amendment request. Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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, n. 13; 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. Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. 2019002204 6 Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, 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). Regarding claim 1, if we assume, arguendo, that Complainant established a prima facie case of discrimination based on his protected classes, the Agency has articulated legitimate, nondiscriminatory reason for its actions.3 Specifically, the posting in question was effectively canceled when the Agency underwent a hiring freeze in October 2016. RMO testified that no one was selected for the position. In this matter, there is no evidence that Complainant was subjected to discriminatory or retaliatory actions based on his protected classes or in reprisal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the FAD’s dismissal of claims 2-15 pursuant to 29 C.F.R. §1614.107(a)(1) and finding that it did not discriminate or retaliate against Complainant as alleged in claim 1. 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. 3 For the purposes of analysis, we assume, without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2019002204 7 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. 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. 2019002204 8 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, Director Office of Federal Operations August 19, 2020 Date