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

Equal Employment Opportunity Commission

Apr 25, 2019

0120180600 (E.E.O.C. Apr. 25, 2019)

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

Norbert K.,1
Complainant,

v.

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

Appeal No. 0120180600

Hearing No. 430-2016-00255X

Agency No. HSTSA2346020105

DECISION

On November 27, 2017, 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
October 24, 2017, 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. 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 Transportation
Security Officer, SV-1802-D, at the T.F. Green Airport in Providence, Rhode Island.

On May 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of national origin (African) and color (brown) when:

1) On February 13, 2015, his supervisor instructed him to rewrite his statement concerning
a screening area incident;

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) On November 15, 2014, management issued him a written reprimand and remedial
training for missing a bag that went through the screening area;
3) On November 24, 2014, he was accused of hiding from his supervisor because he had
forgotten to wear the correct shoes to work;
4) On December 25, 2014, his supervisor waited several hours after his shift began to
return his lost checkpoint stamp;
5) On January 30, 2015, an email that he sent to a human resources specialist concerning
his unhappiness with his evaluation was forwarded to his supervisor;
6) In February 2015, management issued him a low rating on his evaluation;
7) In February 2015, his supervisor did not acknowledge his language interpretation skills
on his evaluation; and
8) On March 6, 2015, management terminated his probationary employment and did not
provide him with an opportunity to appeal.

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). Complainant requested a hearing.

Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 22, 2017,
motion for a decision without a hearing and issued a decision without a hearing on September 25,
2017. In issuing the decision, the AJ dismissed claims (2) to (4) pursuant to 29 C.F.R. §
1614.107(a)(2) for untimely contact with an EEO counselor. For claims (1), (5), and (7), AJ found
no prima facie case of discrimination because the alleged actions were insufficient to constitute
adverse employment actions. As for claims (6) and (8), the AJ found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions. The AJ concluded that
Complainant could not show by a preponderance of the evidence that the articulated reasons were
pretext for discrimination. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
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To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus.

Initially, we note that Complainant did not challenge the AJ’s decision to dismiss claims (2) to (4)
pursuant to 29 C.F.R. § 1614.107(a)(2). Therefore, we will not address these claims on appeal.

For Complainant to prevail on his remaining claims of disparate treatment discrimination, he must
satisfy a three-part evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity
to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency
were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at
804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

Although the AJ found that Complainant failed to establish a prima facie case of discrimination in
claims (1), (5), and (7), we note that the prima facie inquiry may be dispensed with where the
Agency has articulated legitimate and nondiscriminatory reasons for its conduct See U.S. Postal
Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans
Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Here, the undisputed facts show that the
responsible management officials clearly articulated legitimate, nondiscriminatory reasons for
their actions. As such, we shall proceed directly to the merits of the Agency’s articulated reasons.

For claim (1), the Agency averred that on February 13, 2015, management asked Complainant to
provide a written statement addressing a security breach on February 9, 2015, where Complainant
failed to identify a knife in a passenger’s bag. The Agency explained that management directed
Complainant to provide a more detailed statement because his initial statement was very vague.

Regarding claim (5), the Assistant Federal Security Director averred that she received an email
from Complainant on January 30, 2015, in which Complainant requested an apology from his
immediate supervisor for implying that his Japanese interpretation skills were not useful. The
Assistant Federal Security Director explained that she forwarded the email to the manager who
oversaw screening operations at the airport because she was not a human resources specialist and
was outside Complainant’s chain of command. The Assistant Federal Security Director
emphasized that Complainant did not request confidentiality in his email.

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For claim (6), Complainant’s supervisor cited Complainant’s performance, namely his inability to
quickly grasp the screening officer functions, as the basis for rating him at the “Achieved
Expectations” level.

Regarding claim (7), Complainant supervisor explained that he recognized Complainant’s
Japanese interpretation skills by giving him a higher “Exceeded Expectations” rating in the
“Additional Duties” competency.

As for claim (8), Complainant’s immediate supervisor averred that he served Complainant with
the Notice of Removal, which was issued by the Assistant Federal Security Director. In the Notice
of Removal, the Assistant Federal Security Director explained that he removed Complainant from
federal service because Complainant’s poor performance created security risks at the airport.
Additionally, the Assistant Federal Security Director averred that he could not trust Complainant
to tell the truth because Complainant failed to give truthful answers when questioned about
incidents. Though management gave Complainant the opportunity to resign in lieu of removal,
Complainant refused to resign or sign the removal letter. The Agency emphasized that
probationary employees do not have a statutory right to appeal adverse employment actions under
civil service regulations.

Upon careful review of the AJ's decision and the evidence of record, we find that a reasonable fact-
finder could not find in Complainant's favor. The Commission has long held that agencies have
broad discretion to set policies and carry out personnel decisions and should not be second-guessed
by the reviewing authority absent evidence of unlawful motivation. Complainant v. Dep't of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Given the facts in this case, we agree
with the AJ that Complainant failed to show by a preponderance of the evidence that he was
subjected to discrimination, as the record clearly reflects that the Agency provided legitimate,
nondiscriminatory reasons for its actions. In this regard, Complainant has not shown that he was
treated less favorably than similarly situated individuals or demonstrated any causal link between
the Agency’s actions and his protected characteristics. Consequently, Complainant cannot prevail
on his allegations of discrimination.

Regarding Complainant's hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile
work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Complainant v. United States Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.
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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.
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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 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

April 25, 2019
Date