U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leroy Y.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022002212 Hearing No. 541-2020-00151X Agency Nos. HS-TSA-00252-2020 and HS-TSA-00231-2021 DECISION On March 17, 2022, 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 February 22, 2022, final decision concerning his equal employment opportunity (EEO) complaints 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 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 decision. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a Transportation Security Inspector (TSI), 1801, SV-H at the Denver International Airport (DEN) in Denver, Colorado. On January 9, 2020, Complainant filed an EEO complaint (Case A), alleging that the Agency discriminated against him and subjected him to a hostile work environment in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 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. 2 2022002212 1. From February 2, 2018 and continuing, Complainant continually experienced deterioration of his working relationships with management when: a. Management refused to assist Complainant with cases. b. Management rejected Complainant’s reports which were previously approved. c. Management began “nitpick[ing]” when editing Complainant’s work. d. Management refused to remove a Letter of Guidance and Instruction (LOGI) issued to Complainant five years ago. e. Management continually lowered Complainant’s Employee Performance Management Plan (EPMP) ratings. 2. On October 31, 2019, management issued Complainant the lowest EPMP rating of his career. On December 7, 2020, Complainant filed an EEO complaint (Case B), alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of age (60) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On October 20, 2020, management issued Complainant a 3.6 rating on his fiscal year (FY) 2020 EPMP appraisal. 2. On November 19, 2020, management denied Complainant’s request to have a Transportation Security Inspector (TSI) assist him with an inspection. 3. On December 3, 2020, management pulled Complainant’s access reports on his Denver International Airport (DEN) security badge (SIDA). 4. In April 2020, management accused Complainant of vandalizing the DEN airport equipment. 5. To date, management has not approved Complainant’s May 27, 2020 inspection report that he posted to the Performance and Results Information System (PARIS). 6. As of March 18, 2021, management has not told Complainant how to address the violations from a Letter of Investigation (LOI) he submitted on February 11, 2021. 7. On March 18, 2021, management did not provide Complainant the status of a pending investigation into his conduct regarding COVID-19 procedures. 8. On June 1, 2021, management discussed with Complainant, in an open area, the Employee Assistance Program (EAP) and concerns for his well-being. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing on both complaints, which were consolidated by the AJ for processing. Thereafter, Complainant withdrew his request for a hearing. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 3 2022002212 In addition to Complainant, the Agency employees involved in these two cases include the following: Complainant’s first-line supervisor (Supervisor-1) from October 2017 through October 2019 held the position of Supervisory Transpiration Security Inspector (STSI); Complainant’s first-line supervisor beginning in November 2019 (Supervisor-2) also held the position of STSI; an additional Acting STSI (Supervisor-3) communicated with Complainant in relation to claims in Case B but was not in Complainant’s direct chain of command; Complainant’s second-line supervisor (Manager-1) beginning in September 2019 held the position of Assistant Field Security Director for Inspections; and Complainant’s fellow TSI (Coworker-1) was the subject of the request for assistance in claim B.2. Regarding claim A.1., Complainant stated that the deterioration in his relationship with management began when Complainant recused himself from an investigation on June 15, 2017. Specifically, Complainant stated that a passenger’s dog bit a Transportation Security Officer and that he disagreed with management’s decision to consider it an assault case. Complainant stated that he presented facts and findings that would support changing screening procedures nationally. Complainant stated that his acting supervisor for FY 2017 belittled and ridiculed him and told him that he “didn’t know what [he] was talking about.” Complainant stated that his FY 2017 EPMP score was low and that a grievance resulted in it being raised. Complainant reported that his second-line supervisor2 for FY 2017 told him that Complainant’s FY 2017 EPMP score was low because Complainant “was being difficult relating my dog bite case.” Further, Complainant reported that Supervisor-1 constantly questioned his subject matter expertise, required written explanations of regulatory requirements, and failed to provide timely or accurate guidance. Supervisor-1 generally denied the allegations associated with claim A.1. Supervisor-1 stated that he did not refuse Complainant’s request for assistance. He explained that he checked with other supervisors and learned that no other inspectors were available to assist Complainant. Supervisor- 1 reported that Complainant’s work submissions were reviewed in accordance with Agency policy and guidance documents. Supervisor-1 noted that a LOGI can remain in an employee’s file for up to five years. Supervisor-1 stated that Complainant received the relevant LOGI in October 2018. Supervisor-1 explained that Complainant’s final EPMP ratings were based on Complainant’s performance during the relevant rating periods. Supervisor-1 reported that expectations are outlined in an initial meeting and a mid-cycle review is held where feedback is provided. Supervisor-1 stated that he met with Complainant at each of the mid-cycle reviews and provided Complainant with feedback that Complainant did not adopt. Supervisor-1 stated that Complainant has not followed directions of Agency Policy, second-level supervisors, or first-level supervisors over the last two to three years resulting in Complainant receiving counseling and proposed disciplinary actions. Complainant received the LOGI referred to in claim A.1 on October 3, 2018. The LOGI reiterated timeliness requirements for cases due to Complainant’s failure to submit multiple cases and established procedures for Complainant to follow while the LOGI remained in effect. 2 Complainant’s 2017 second-line supervisor is retired and declined to participate in the investigation. 4 2022002212 Regarding claim A.2, Complainant received a 3.51 “Exceeded Expectations” rating for his FY 2019 rating. Complainant stated that the rating was unjustified because he did not receive any negative communication or measures to correct any performance deficiencies for improvement prior to final rating. Complainant contends that he met all of the required performance goals and performance standards. Supervisor-1 was the rating official for Complainant’s FY 2019 EPMP rating. Supervisor-1 stated that he held an initial discussion with Complainant on October 30, 2018, to discuss expectations for each rating level. On April 20, 2019, Supervisor-1 held a mid-cycle discussion with Complainant to discuss Complainant’s progress and areas where he needed improvement. The signed document relating to the mid-cycle review contained the following, “discussed [case] process improvement…and reminder to account for all time in PARIS.” Supervisor-1 stated that Complainant’s final FY 2019 rating was based on available information and other performance measures. Supervisor-1 explained that he reviewed the core competencies and performance goals and whether Complainant’s FY 2019 performance met the multiple elements of these standards. Supervisor-1 denied that Complainant’s EEO activity, the dog bite case, or Complainant’s membership in any protected class contributed to the rating. Complainant’s grievance associated with the FY 2019 EPMP rating, as considered by a designated grievance official, was denied. Regarding claim B.1, Complainant received a 3.68 “Exceeded Expectations” rating for FY 2020. Supervisor-2 was the rating official. Complainant reported that Supervisor-2 provided Complainant with a final rating sheet without any justification or reason for the rating. Complainant reported that, prior to this meeting, Supervisor-2 stated that Complainant “openly insulted every TSI who has ever worked at DEN.” Complainant did not identify when exactly the Supervisor-2 made the foregoing statement. Supervisor-2 reported that she delivered the rating to Complainant in person on October 7, 2020. Supervisor-2 stated that she explained to Complainant that he did not complete/meet all the criteria to receive a rating of “Achieved Excellence.” Supervisor-2 explained that there is specific and challenging work that must be completed to receive a rating of “Achieved Excellence.” Supervisor-2 provided over 10 examples of items across the core competency and performance goals which Complainant did not perform that prevented him from receiving a rating of “Achieved Excellence.” Regarding claim B.2, Complainant reported that he submitted a request for Coworker-1’s assistance to Supervisor-2 and Supervisor-3 via email. Supervisor-2 reported that she did not deny Complainant’s request. She stated that she replied to Complainant’s emailed request by asking for specifics of his request. Supervisor-2 reported telling Complainant that she was not approving general assistance requests because management wanted to limit contact between employees due to the COVID-19 pandemic. Supervisor-2 reported that Complainant replied stating that he needed assistance with inspection activity. She stated that she replied asking if Coworker-1 could start working without Complainant because Supervisor-2 needed Complainant to complete some high priority tasks. 5 2022002212 Supervisor-3 reported that he did not approve Complainant’s request because Complainant failed to respond to Supervisor-3’s request to know to what specific inspection activity Complainant required Coworker-1’s assistance. Regarding claim B.3, Complainant stated that Coworker-1 notified Complainant in a phone call that Supervisor-3 pulled their access reports. Supervisor-3 admitted that he pulled Complainant’s access report to determine if Complainant and Coworker-1 were working together without prior approval. Supervisor-3 explained that Manager-1 directed on November 5, 2020, that TSIs are to work independent of each other unless they receive prior approval from management. Regarding claim B.4, Complainant reported that Supervisor-2 told Complainant in an email and over the phone that she had received a complaint from DEN Security Coordinators that Complainant vandalized the oversized baggage carousels. Complainant reported that Supervisor- 2 later emailed that no specific allegation had been made. Complainant stated that the communications lead him to believe management was questioning his integrity and also lead him to question whether DEN actually reported that he vandalized their equipment. Supervisor-2 denied accusing Complainant of vandalizing DEN equipment. Supervisor-2 explained that Complainant conducted an inspection that included a finding that the access portal to oversized carousels was not secured and that the mechanism was broken. Supervisor-2 stated that an airport security coordinator said that he did not know who broke it and for all he knew, Complainant could have broken it. Supervisor-2 stated that she looked into this accusation and asked Complainant about it in person. Supervisor-2 stated she did not believe Complainant broke the mechanism but that she had to ask about it in performing due diligence. Manager-1 asked the relevant airport security officials if they were making a formal complaint against Complainant and they responded they were not. Supervisor-2 reported that she verbally notified Complainant that the accusation was not moving forward and that there would be nothing further from this matter. Regarding claim B.5, Complainant reported that he submitted the report on the PARIS system for Supervisor-2’s review and approval. Complainant stated that he has not been given a reason for why the report has not been approved. Supervisor-2 stated that she has reviewed the relevant report but has not approved it yet. She explained that its status as submitted rather than approved has no negative reflection on Complainant. She explained that she has an overwhelming workload that prevent her from addressing the report at this time. Regarding claim B.6, Complainant stated that he submitted the LOI via email to Supervisor-2 for review and approval. Supervisor-2 confirmed that she received Complainant’s submission of the LOI. Supervisor-2 stated that she has not responded to the submission because she requires additional information prior to moving forward. She noted that there were additional issues related to the investigation that required resolution prior to moving forward with the LOI. 6 2022002212 Regarding claim B.7, Complainant stated that Supervisor-2 directed him to provide a written statement addressing the two following behaviors: (1) working with another TSI without prior approval from management; and (2) being in a GOV without complying with the recommendations of no more than two employees in different rows, sitting cattycorner from each other. Complainant stated that he does not know the status of the investigation. He reported submitting a request for status updates via email to Supervisor-2 and Manager-1. Supervisor-2 explained that the investigation that is the subject of claim B.7 is related to the conduct in claim B.3. She stated that investigation is still pending because she has not reached a decision regarding any potential discipline. She reported that she informed Complainant of the pending status in response to Complainant’s email. Manager-1 denied receiving a request for updates from Complainant. The record supports that a manager not in Complainant’s chain of command received the email and that this manager provided Complainant with an explanation of avenues of grievance available to Complainant. Regarding claim B.8, Complainant reported that Manager-1 entered Complainant’s cubicle and provided Complainant with an Agency EAP flyer. Complainant stated that Manager-1 indicated that he was providing the flyer due to reports from coworkers who were concerned about Complainant’s well-being. Complainant stated he was able to hear coworkers or other people talking in the vicinity of his cubicle. Manager-1 admitted that he handed Complainant an EAP flyer at Complainant’s cubicle on June 1, 2021. He reported that he informed Complainant that a few individuals expressed concern for Complainant. The concerns reported to management included that Complainant displayed the following: alienation from coworkers, paranoid behavior, contempt for the agency or colleagues, arguing with coworkers and management, refusing to obey Agency policies or procedures, viewing himself as victimized by management, and explosive outbursts of anger or rage without provocation. Manager-1 stated that he assured Complainant that he just wanted to make sure Complainant was aware of the support if Complainant felt he needed it. Manager-1 reported that there were no other individuals in the vicinity and that no other individuals witnessed the conversation. Manager-1 explained that he chose to engage Complainant at the cubicle because he believed it was more personal to engage him in his space and that it would allow him to feel comfortable. 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 7 2022002212 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 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community 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. See St. Mary's Honor Center 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. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 her or his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 8 2022002212 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). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the employment actions at issue. Regarding claim A.2, Supervisor- 1 stated that Complainant’s final FY 2019 rating was based on available information and whether Complainant’s performance satisfied the multiple elements of the core competencies and performance goals. Regarding claim B.1, Supervisor-2 stated that Complainant did not complete/meet all the criteria for a rating of “Achieves Excellence,” meaning that it was appropriate to find Complainant “Exceeded Expectations.” Supervisor-2 provided over 10 examples of items across the core competency and performance goals which Complainant did not perform that prevented him from receiving a rating of “Achieves Excellence.” Regarding claim B.2, Supervisor-2 reported telling Complainant that she was not approving general assistance requests because management wanted to limit contact between employees due to the COVID-19 pandemic. Supervisor-2 reported asking if Coworker-1 could start working without Complainant because Supervisor-2 needed Complainant to complete some high priority tasks. Supervisor-3 reported that he did not approve Complainant’s request because Complainant failed to respond to Supervisor-3’s request to know for what specific inspection activity Complainant required assistance. Regarding claim B.5, Supervisor-2 stated that she has reviewed the relevant report but has not approved it yet. She explained that she has an overwhelming workload that prevent her from addressing the report at this time. Supervisor-2 noted that its status as submitted rather than approved has no negative reflection on Complainant. Regarding claim B.6, Supervisor-2 stated that she has not responded to the submission because she requires additional information prior to moving forward. She noted that there are additional issues related to the investigation that require resolution prior to moving forward with the LOI. After a review of the record, we find Complainant failed to show that Agency’s articulated reasons for the discrete adverse employment actions were a mere pretext for discrimination. The record does not contain evidence to demonstrate that the reasons offered were factually baseless, not the actual motivation, or insufficient to motivate the action. Regarding Complainant’s hostile work environment claim, the record fails to prove that the conduct complained of was based on Complainant’s membership in a statutorily protected class. Complainant concedes that claim A.1’s foundation may have been a work dispute over the evaluation of dog bite investigation. In multiple instances, Complainant acknowledges that there were no statements related to Complainant’s membership in a statutorily protected class. Rather, he relies on his belief of discriminatory animus. Moreover, we note the record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. 9 2022002212 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 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). 10 2022002212 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 February 6, 2023 Date
