U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lavern B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020005283 Hearing Nos. 470-2017-00078X 471-2018-00071X 471-2018-00072X 471-2018-00073X 471-2018-00078X 471-2018-00110X 471-2019-00080X Agency Nos. HS-TSA-23877-2015 HS-TSA-25774-2016 HS-TSA-26533-2016 HS-TSA-00590-2017 HS-TSA-00997-2017 HS-TSA-01745-2017 HS-TSA-02381-2017 HS-TSA-00097-2018 HS-TSA-00217-2018 HS-TSA-01805-2018 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. 2020005283 2 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 August 10, 2020, 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. 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency’s Detroit Metro Wayne County Airport in Detroit, Michigan. Starting on May 26, 2015, Complainant filed ten EEO complaints alleging 25 incidents of discrimination and harassment based on race, color, and/or disability, and in reprisal for protected EEO activity. The complaints included discrete claims when the Agency issued Complainant a Letter of Counseling (LOC) on February 16, 2015, December 2, 2016, and September 19, 2017; and gave Complainant an “unfavorable” low performance rating on October 15, 2015, and April 21, 2018. Examples of the alleged harassment include accusing Complainant of leaving an unattended bag at the workstation and incorrectly performing a pat-down; failing to rotate Complainant after 30 minutes; “forcing” Complainant to use his injured arm to do walk-through metal detector duty;2 scrutinizing his whereabouts; and including negative comments in Complainant’s performance reviews. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigations (ROIs) and notices of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings, which were processed in seven hearing requests. The hearing matters were joined by the AJ. On May 5, 2020, the Agency filed a Motion for Summary Judgment, which Complainant opposed. On June 1, 2020, the AJ heard oral arguments on the Agency’s motion and issued an oral decision. The AJ followed up with an Order Entering Judgment on July 7, 2020. The AJ found that Complainant failed to establish a hostile work environment based on race, color, or disability, or in retaliation for protected EEO activity, because the complained of actions were neither severe nor persuasive, nor would they deter a reasonable person from engaging in EEO activity. 2 Complainant later admitted that no one instructed him to use his right arm. Oral Arguments Transcript at 191-2. 2020005283 3 The AJ also determined that Complainant did not establish a prima facie case of discrimination or retaliation because he failed to establish a causal relationship between his protected EEO activity and the issues in this case; and he did not present any credible evidence of true similarly situated comparators to support his claims. The AJ concluded that, even when all the facts and reasonable inferences were viewed in the light most favorable to Complainant, the conduct of management did not amount to discrimination or harassment. 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. The instant appeal followed. Complainant filed a statement in support of his appeal. The Agency opposed Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all factual findings following a limited scope hearing that are expressly identified as derived from the hearing 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. National Labor Relations Board, 340 U.S. 474, 477 (1951). 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). All factual findings that are not derived from a hearing or that are not expressly identified as such by the AJ are subject to de novo review. An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. AJ Bias On appeal, Complainant asserts that the AJ was biased. Complainant must make a substantial showing of personal bias by the AJ in order to prevail on his contention that the AJ displayed bias. Such bias must be shown to have prejudiced him in this matter. Complainant must establish that the alleged bias demonstrated, so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that he did not receive a fair and impartial hearing. See Smith v. Dep’t of the Army, EEOC Appeal No. 01880866, (May 11, 1988) citing Roberts v. Morton, 549 F.2d 158 (10th Cir) (cert. denied) and Roberts v. Andrus, 434 U.S. 834 (1977). In this case, Complainant only makes a broad allegation of bias, and there is no evidence that the AJ was biased in favor of the Agency such that Complainant did not receive a fair evaluation of his case. Decision without a Hearing 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). 2020005283 4 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. (Aug. 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). In order 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 he 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. Here, however, Complainant has failed to establish such a dispute. Complainant argues that the AJ made errors of law, and that the summary judgment decision was flawed and filled with multiple misleading statements, but Complainant only offers general assertions, without specifying any examples of alleged errors or misleading statements. Complainant also challenges the AJ’s decision to not hear his witnesses, but he did not provide any information about these potential witnesses. Further, the Agency notes that Complainant failed to comply with the AJ’s order when he did not provide a witness list. A review of the record does not reveal any genuine disputes of material facts. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Aff., EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 2020005283 5 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, color, and disability, and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For the LOC issued on February 16, 2015,3 a Supervisory Transportation Security Officer (STSO) stated that, when she asked Complainant to inform another employee that it was time to rotate out, he responded that he did not have to listen to her because she was not a Lead; as such, Complainant was issued the LOC for failure to follow instructions. ROI for HS-TSA-23877-2015 at 81-2. Another STSO asserted that she issued Complainant the December 2, 2016, LOC for failure to adhere to the Agency’s policy on breaks because he took extended breaks on multiple occasions. ROI for HS-TSA-26533-2016 at 110, 273. Regarding the September 19, 2017, LOC, a different STSO stated that Complainant failed to follow instructions when he did not take a drug test on September 14, 2017. Another STSO and a witness testified that, when Complainant was asked if he took the drug test, he responded that he had not. ROI for HS-TSA-01745-2017 at 84, 104-5, 110. For Complainant’s October 15, 2015, performance evaluation, an STSO averred that Complainant could improve in the efficiency of his performance, such as taking initiative and assisting other officers when standing at the checkpoint, instead of staring off into space. ROI for HS-TSA-23877-2015 at 73. Another STSO responded that he gave Complainant a score between a 3 and 3.5 for his April 21, 2018, performance evaluation, and that a score of 3 is given when an employee is doing his job but not going above and beyond and there is room for improvement. Specifically, Complainant was observed standing with his arms crossed, rather than walking up and down to give instructions to passengers. ROI at HS-TSA-01805-2018 at 94. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), req. for recon. den’d, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant disagreed with the Agency’s explanations. For example, Complainant averred that he took a drug test on September 14, 2017, and he asserted that the witness “ha[d] it all wrong.” Oral Arguments Transcript at 239, 244. However, Complainant did not provide any supporting evidence, as noted in the AJ’s oral decision, that he did not ever request clarification from the drug center. Oral Arguments Transcript at 308-9. We find that Complainant did not present any evidence to show that the proffered reasons were not worthy of belief, and his bare assertions that management officials discriminated against him are insufficient to prove pretext or that their actions were discriminatory. 3 While the underlying incident occurred on February 16, 2015, this LOC was issued on March 9, 2015. ROI for HS-TSA-23877-2015 at 117-8. 2020005283 6 In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on race, color, or disability, or in reprisal for protected EEO activity, when he received three LOCs and two “unfavorable” performance ratings. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of his alleged bases for the LOCs and “unfavorable” performance ratings. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of these actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on race, color, or disability, or in reprisal for prior protected EEO activity, when it gave Complainant the LOCs and “unfavorable” performance ratings at issue. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his 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 Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Assuming, without finding, that Complainant belongs to a protected class based on race, color, disability, and protected EEO activity, and that he was subjected to unwelcome verbal conduct as described by Complainant, we find that he only makes bare assertions and presented no evidence that any of the incidents, by over ten different management officials, was based on a protected category. For example, Complainant relies on the management officials’ general knowledge of his EEO activity through office gossip, but he did not show any connection between his EEO complaints and the alleged harassment. Further, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). 2020005283 7 Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Aff., EEOC Appeal No. 0120130465 (Sept. 12, 2014). In this case, there is no evidence that the complained of conduct, which were all work-related, were abusive or offensive, or taken in order to harass Complainant based on his race, color, or disability. To ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe R.R. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004 at § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Comm., EEOC Appeal No. 0120160024 (Dec. 20, 2017). As noted above, the incidents of alleged harassment occurred within the normal course of business, and we find that they would not dissuade a reasonable person from engaging in EEO activity. Accordingly, we find that Complainant did not establish that the Agency subjected him to harassment based on race, color, or disability, or in reprisal for prior protected EEO activity. 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 order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2020005283 8 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020005283 9 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 June 29, 2022 Date
