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

Equal Employment Opportunity Commission

May 10, 2019

0120180932 (E.E.O.C. May. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Herbert M.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120180932

Agency No. HSTSA009742017

DECISION

On January 19, 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 Agency’s
December 12, 2017 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation
Security Officer at the Agency’s Los Angeles International Airport in Los Angeles, California.

On March 30, 2017, Complainant filed an EEO complaint alleging that the Agency subjected
him to hostile work environment harassment on the bases of race (African-American), color
(Black), and sex (male) when:

1. between December 2016 and January 17, 2017, management questioned
Complainant about an incident, and

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.
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2. about February 17, 2017, management questioned Complainant regarding
assignment of breaks and shift working hours.

The Agency accepted Complainant’s complaint for EEO investigation.

During the EEO investigation, for (1), Complainant stated that his Supervisory Transportation
Security Officer (S1) questioned him about the efficiency of his zone staff, stating that the
Transportation Security Manager (S2) told him to question Complainant. Complainant stated
that his staff’s “throughput”2 for the hour exceeded the average throughput and management
harassed him for excelling. Complainant stated that he was the only Lead Officer of his race and
color working for S1 that day. As to (2), Complainant stated that S2 questioned him about why
he took his last rest break after 21:45 hours. Complainant alleged that others outside of his
protected classes were not questioned about taking a break after 21:45.

Regarding (1), S2 stated that he did not recall a specific instance of asking S1 to speak with
Complainant about his zone. However, he has talked to his staff about the lanes and Lead
Officers they supervise. S2 stated that the airport tracks zone efficiency on a data collection
sheet. Complainant’s Supervisor, S1, stated that it is his responsibility to speak with Lead
Officers about management of their zone and passenger throughput. S1 stated, in December
2016, his terminal’s efficiency was not good, and managers needed to pay special attention to
performance and efficiency to make improvements. S1 stated that he “radioed” someone to get
Complainant’s specific throughput number and learned that his throughput exceeded the
standard. S1 stated that all Lead Officers are held to the same performance standards and are
questioned about their efficiency.

For (2), S2 stated that he has had on-the-spot conversations with Lead and Supervisory
Transportation Security Officers about the timing of their rest breaks. S2 stated that he asked
Lead and Supervisory Officers to take their breaks before the last hour of their tour to prevent
lack of coverage and allow command presence at the end of shifts. S2 stated that he did not
recall a specific instance of discussing taking a break after 21:45 with Complainant.

Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
or an immediate final agency decision. On October 27, 2017, Complainant requested the latter.
In accordance with Complainant’s request, pursuant to 29 C.F.R. § 1614.110(b), the Agency
issued a final decision. The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. The instant appeal from Complainant followed.

2 This apparently refers to the number of passengers processed by security officers in a particular
airport line over a designated length of time.
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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. (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”).

To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were 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). 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 Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

We find that Complainant failed to establish a claim of discriminatory harassment. Specifically,
we find that Complainant failed to prove, by a preponderance of the evidence, that the actions
complained of rose to the level of a hostile work environment or were based on his race, color, or
sex. Complainant alleged that his second level supervisor, S2, instructed his first level
supervisor, S1, to question him about the efficiency of his zone throughput. The Agency stated
that the airport tracks zone efficiency and it is supervisory responsibility to speak with Lead
Officers about management of their zone and passenger throughput. The Agency stated that all
Lead Officers are held to the same performance standards and are questioned about their
efficiency. S1 acknowledged that when he inquired about Complainant’s throughput, he learned
that he exceeded the standard.

Further, Complainant alleged that S2 asked him about taking a break after 21:45. S2 stated that
he has on-the-spot conversations with Lead and Supervisory Transportation Security Officers
about the timing of their rest breaks to ensure proper coverage and command presence at the end
of shifts.

The record reflects that the alleged incidents were more likely the result of routine supervision
and general workplace disputes and tribulations.
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Summarily, beyond his bare assertions, we find Complainant has produced no evidence that the
Agency’s actions were based on discriminatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.

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).
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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. 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

May 10, 2019
Date