U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Morton P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022000051 Agency No. HS-TSA-01812-2020 DECISION On October 13, 2021, 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 September 13, 2021, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO), SV-1802-D Band, at the Agency’s Phoenix Sky Harbor International Airport in Phoenix, Arizona. On August 19, 2020, 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 (African- American), color (Black), age (DOB: 1962), and reprisal for protected EEO activity (the instant complaint) 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. 2022000051 2 1. In and around December 2019 or January 2020, an unknown person placed a note on the shared refrigerator in the breakroom that stated they hated “n******”; 2. In and around December 2019 or January 2020, a co-worker made negative comments to Complainant about his performance in front of passengers; 3. On February 7, 2020, a co-worker assigned to train Complainant expressed to Complainant he did not want to train anyone and made Complainant feel like a bother; 4. From February 7, 2020, through July 28, 2020, management officials did not properly track Complainant’s on-the-job training (OJT); and 5. On July 28, 2020, management terminated Complainant’s employment during his trial period, effective immediately. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) following a remand for a supplemental investigation. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In the final Agency decision (FAD), the Agency explained that reprisal was not specifically addressed as a basis because the alleged discriminatory incidents in claims 1, 2, 4, and 5 were either unrelated to reprisal, predated Complainant’s EEO activity, or occurred prior to management’s knowledge of Complainant’s initiation of the EEO process. As for claim 3, the Agency noted that Complainant stated in his affidavit that the claim was not related to his race, age, or reprisal. Regarding disparate treatment, the Agency found that management articulated legitimate, nondiscriminatory reasons for the lack of OJT Coach signatures on Complainant’s training records in claim 4. A management official asserted that during the period at issue, the Agency was piloting a digital recordkeeping process and the electronic version did not have a provision for electronic signatures or initials. However, management explained that the OJT Coaches provided summaries of discussions with Complainant and recommendations for future emphasis. The Agency found that the record supported the statement that the electronic record documented Complainant’s successes and struggles. For claim 5, Complainant’s termination, management stated that Complainant was unable to show task proficiency in each of the required areas. In support, the Agency stated that the record was replete with examples of Complainant’s inability to apply the TSO Standards of Procedure to the live requirements at Terminal 4. 2022000051 3 The Agency added that while a Security Training Instructor believed Complainant may have had the ability to become proficient, no one attested to Complainant demonstrating consistent daily proficiency on any of the required screening tasks. The Agency concluded that Complainant failed to establish by a preponderance of the evidence that Complainant’s termination was motivated by discriminatory intent. Turning to Complainant’s allegations of a hostile work environment, the Agency asserted that Complainant did not have first-hand experience of the racially offensive statement at issue in claim 1 and learned about it at a briefing, which was management’s corrective action to prevent a reoccurrence. Regarding coworker criticism, the Agency determined that Complainant did not connect the behavior to his race or color and affirmed that the incident was not related to his age or reprisal. Similarly, the coworker assigned to train Complainant denied making the statement and the Agency stated that Complainant declared the statement was unrelated to his race, color, age, or reprisal. Therefore, the Agency concluded that Complainant failed to establish that he was subjected to offensive verbal or physical conduct based on his protected classes that was severe or pervasive enough to create an intimidating and hostile work environment. CONTENTIONS ON APPEAL On appeal, Complainant reiterates his allegations and contests management's explanations for the challenged actions. Additionally, Complainant disputes the assertion that his claims predate management’s awareness of his protected activity. Complainant argues that no other individuals had their training improperly tracked. According to Complainant, the Agency failed to consider a March 11, 2020, disagreement between Complainant and a Supervisor. Complainant asserts his belief that following the disagreement it became well known that he would not proceed with the certification process and this information was not considered or included in the record. Complainant further contends that OJT Coaches had discretion to approve or sign off on his training and despite accumulating more than the required training hours, he was not allowed to test for certification at 60.5 hours, which Complainant argues did not occur with any other individuals. Complainant reiterates his belief that he was denied the same rights and privileges as his peers, which he avers contributed to a hostile work environment. In response, the Agency asserts that it properly found that Complainant was not discriminated against when he was terminated during his trial period for failing to pass his OJT. The Agency maintains that Complainant provided no evidence of a legally actionable hostile work environment. Finally, the Agency reiterates that it correctly determined that there is no evidence that the Agency’s actions were related to his protected bases, nor can Complainant show pretext. The Agency asserts that Complainant raised no argument or evidence to support a finding contrary to the FAD. 2022000051 4 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”). 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 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. See McDonnell Douglas, 411 U.S. at 802; 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. See Texas 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. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Serv., EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep’t of Veterans Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 2022000051 5 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, color, age, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim 4, the record indicates that an unexplained gap occurred in Complainant’s OJT record. Further, in an email dated May 20, 2020, the Transportation Security Manager reported that “everyone [forgot]” about Complainant while the Transportation Security Manager was out for an extended timeframe, which supports Complainant’s allegation that his training was not properly tracked. However, there is no evidence that this occurred because of discriminatory or retaliatory animus. At least one management official averred that the training notes from OJT Coaches included positive and negative comments, summaries of discussions with Complainant, and recommendations for future emphasis, which indicated that training discussions occurred. Moreover, the record is clear that despite the gap, Complainant exceeded the requisite training hours during the period at issue. Regarding claim 5, Complainant’s termination, the record supports the Agency’s explanation that Complainant’s OJT Coaches found that he struggled to perform adequately on a consistent basis in both the testing and real-life environments. It is well established 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, which is not present here. See Complainant v. Dep't of Vet. Affs., EEOC Appeal No. 0120130083 (Aug. 8, 2014). We acknowledge that a Security Training Instructor asserted that, to her knowledge, Complainant was the first to ever be subjected to an observation and reporting process. However, this testimony is insufficient to overcome evidence in the record corroborating the Agency’s explanations that Complainant failed to meet proficiency requirements and that management officials had ongoing concerns about Complainant’s performance. Moreover, the record includes an email indicating that the same policy would be applied going forward to TSOs under consideration for termination during the trial period. We find that Complainant has not established that the Agency's reasons were a pretext for discrimination. Harassment Complainant also alleged that he was subjected to unlawful harassment. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) 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 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2022000051 6 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). Here, the record does not support Complainant's assertions that any of the alleged incidents of harassment were severe or pervasive or due to any of his protected classes. For claim 1, Complainant acknowledged that he never saw the offensive statement on the refrigerator. While employees who witnessed the incidents may have suffered direct harm as a result of the alleged conduct, the Commission finds that substantial evidence shows that Complainant failed to demonstrate that he was subjected to conduct that rose to the level of objectively unreasonable behavior that would trigger a violation of Title VII. See Complainant v. Dep't of Treasury, EEOC Appeal No. 0120131775 (Apr. 1, 2015). Further, the record indicates that the Agency investigated the incident, held a briefing, and removed the letter magnets and whiteboards from the breakroom to prevent recurrence. As for the coworker comments and training incidents in claims 2 and 3, the record reveals that the alleged incidents were more likely the result of personality conflicts and general workplace disputes and tribulations. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). With respect to claims 4 and 5, as described above, we find that Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Overall, the incidents discussed simply do not demonstrate discriminatory or retaliatory animus by responsible management officials. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. 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 decision finding that Complainant was not subjected to discrimination or harassment as alleged. 2022000051 7 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). 2022000051 8 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 23, 2023 Date
