Alton F.,1 Complainant,v.Chad F. Wolf, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 10, 2020

2019004825 (E.E.O.C. Aug. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alton F.,1 Complainant, v. Chad F. Wolf, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019004825 Hearing No. 480-2018-00078X Agency No. HS-TSA-27178-2016 DECISION On May 31, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency decision (FAD) dated February 25, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Transportation Security Administration (TSA) (“Agency”) as a Master Transportation Security Officer (Behavior Detection Officer), SV-1802-F, at the Los Angeles International Airport in Los Angeles, California. On January 25, 2017, Complainant filed an EEO complaint, as amended, alleging that the Agency subjected him to discrimination and harassment based on his race (Hispanic), color (dark skin), 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. 2019004825 2 national origin (Mexican), disability (major depressive disorder, anxiety disorder, acute stress disorder, and associated physical symptoms), and reprisal for prior protected EEO activity when: 1. On November 6, 2015, management entered a negative verbal counseling note in his electronic performance file. 2. In October or November 2015, management informed him not to contact Human Resources regarding use of Family Medical Leave Act (FMLA) leave. 3. On or about December 13, 2015, management informed him that he was not entitled to a witness during meetings with management. 4. On January 6, 2016, management issued him a Letter of Guidance and Direction. 5. On February 4, 2016, management interrogated him regarding a false accusation made by a coworker. 6. On February 6, 2016, management denied his request to see a doctor. 7. On February 26, 2016, management stated that he is always going to be argumentative and disruptive. 8. On March 17, 2016, management denied him representation during the issuance of a Performance Improvement Plan (PIP) and an investigation. 9. On or about March 24, 2016, management stated that his issues could go away if he would voluntarily demote himself to a Transportation Security Officer. 10. On April 7, 2016, management informed him that he was “going to get in trouble for being a snitch.” 11. On April 8, 2016, management threw a copy of the TSA American Federation of Government Employees (AFGE) Collective Bargaining Agreement (CBA) at him. 12. On May 5, 2016, management issued him a Notice of Proposed Removal. 13. On May 5, 2016, management placed two documents in his backpack. 14. On July 3, 2016, management placed a negative counseling entry in his performance folder. 15. On July 15, 2016, management denied his request for time off to work on an EEO complaint. 2019004825 3 16. On August 5, 2016, the Deputy Assistant Federal Security Director (Screening), Los Angeles International Airport - his fourth line supervisor (S4 Hispanic, Light Brown, national origin United States) issued him a second Notice of Proposed Removal. 17. On August 7, 2016, his first line supervisor (S1 - Middle Eastern, Tan, national origin - United States) called him a “fucking snitch.” 18. On August 29, 2016, S4 refused to have the TSA Office of Inspections (OOI) - Internal Affairs initiate an investigation on who authored three memos he was charged in the second proposed removal and decision thereon with fraudulently drafting in support of his oral response to the first proposed removal. 19. From February 2016 to September 2016, S1, alternate S1 (Caucasian/White, according to Complainant), his second line supervisor (S2 Caucasian/White, national origin American), and his third line supervisor (S3 Caucasian/White, according to Complainant) required he call the office to use the restroom. 20. On September 13, 2016, the Assistant Federal Director - Mission Support, Los Angeles International Airport - Complainant’s fifth line supervisor (S5 race - Filipino, Brown, national origin - Filipino-American) issued him a notice of removal. 21. On an unspecified date in 2016, he was not selected for Vacancy Announcement (Vac. Ann.) PSP-16-977189.6. 22. On an unspecified date in 2016, he was not selected for Vac. Ann. LAX-16-985879. 23. On August 3, 2016, he was not selected for Vac. Ann. FAM-16-999743.7. 24. On an unspecified date in 2016, he was not selected for Vac. Ann. PSP-16-115643. 25. On an unspecified date in 2016, he was not selected for Vac. Ann. ONT-16-128560. 26. On an unspecified date in 2016, he was not selected for Vac. Ann. LGB-16-127468. 27. On an unspecified date in 2016, he was not selected for Vac. Ann. ONT-16-134277. 28. On an unspecified date in 2016, he was not selected for Vac. Ann. LAX-16-136451. 29. On an unspecified date in 2016, he was not selected for Vac. Ann. SNA-16-142721. 30. On July 23, 2016, after he asked for additional time off to work on his EEO and Office of Workers’ Compensation Programs (OWCP) cases, alternate S1 replied “Why do you people like [Coworker 1 - Hispanic and Brown, according to Complainant] always have to try to fight everything?” 2019004825 4 31. From March 17, 2016 to May 17, 2016, TSA management placed him on a PIP. 32. The first proposed removal notice of May 5, 2016 enclosed a supporting memo to the file by S2 with false information that was backdated to March 31, 2016. 33. On April 24, 2016, S1 and S3 denied his request for representation during questioning. 34. The first proposed removal notice enclosed a supporting memo by S1 addressed to S2 with false information that was backdated to March 31, 2016. 35. The first proposed removal notice enclosed a supporting memo by S1 addressed to S3 with false information that was backdated to April 23, 2016. Following an investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Administrative Judge (AJ) with the EEOC. Complainant requested a hearing. After he withdrew his request, on May 10, 2018, the AJ ordered the Agency to issue a FAD within 60 days of the date of the order. Thereafter, on July 31, 2018, the Office of Civil Rights and Civil Liberties (CRCL) for the U.S. Department of Homeland Security (the parent agency for TSA) remanded the complaint to TSA for a supplemental investigation finding TSA’s initial investigation was insufficient. TSA completed the supplemental investigation on October 4, 2018. On February 25, 2019, CRCL issued a FAD dismissing the entire complaint because Complainant failed to timely file it, dismissing issues 1 - 15 for stating issues identical to those he previously alleged in informal EEO complaint HS-TSA-26091-2016 which was abandoned, and dismissing issues 21 - 29 & 31 for failure to timely initiate EEO counseling. In the alternative, the FAD found no discrimination was proven on the entire complaint. The instant appeal followed. ANALYSIS AND FINDINGS Timeliness of Formal Complaint EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires that an agency dismiss a complaint which fails to comply with the applicable regulatory time limit - in this case, 29 C.F.R. § 1614.106(b) requires the filing of an EEO complaint within 15 days of receiving the notice of the right to do so. In its FAD, the Agency found that on December 7, 2016, it served the notice of right to file a complaint to Complainant by email, and because TSA’s email tracking records showed he viewed the email on December 7, 8, 9, 10, 11, 2016, and filed his complaint on January 25, 2017, it was untimely. While the record contains a copy of the notice of right to file a complaint, it does not contain the email used to transmit it or any documentation or a declaration confirming that Complainant viewed the email on the above dates. Accordingly, we decline to affirm the Agency’s dismissal of the entire complaint for being untimely filed. 2019004825 5 Dismissal for Stating Same Claim as Prior Complaint or Untimely EEO Counseling: Issues 1 - 15, 21 - 29 and 31 On appeal, Complainant does not challenge the Agency’s dismissal of issues 1 - 15 for stating issues identical to those he previously alleged in informal EEO complaint HS-TSA-26091-2016 and abandoned, or issues 21 - 29 & 31 for failure to timely initiate EEO counseling. Accordingly, we will not address these dismissals, and they stand. Merits of Issues 16 - 20, 30, 32 - 35 To prevail under on his disparate treatment claims, 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). 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 In the first proposed removal, S4 charged Complainant with failure to follow directions. Specifically, that despite being instructed on March 24 and 31, 2016, not to access the airport closed circuit television (CCTV) system without supervisory authorization, Complainant did so on April 22 and 23, 2016. In support of this, management associated with the first proposed removal a memo to the file by S3 dated March 24, 2016, a memo by S1 to S2 dated March 31, 2016, and a memo by S2 to the file dated March 31, 2016, all recounting Complainant was told he was not allowed to view the CCTV. Specifically, in S3’s signed contemporaneous memo to the file dated March 24, 2016, he wrote that when Complainant told him he wanted access to the CCTV so he could refute allegations that he was not following proper procedures, he made it clear to him he was not authorized to do so without supervisory authorization. In S2’s signed memo to the file dated March 31, 2016, he recounted that in response to an accusation, Complainant requested access to CCTV footage, and after S2 conferred with S3, S2 told Complainant he is not allowed to access the CCTV for any reason without clear authorization from management. In S1’s contemporaneous memo to S2 dated March 31, 2016, he wrote that at his PIP weekly feedback evaluation, Complainant asked to review the CCTV as evidence of him working correctly, and he responded he was not allowed to review the CCTV. In support of his oral reply to this charge, Complainant submitted three memos. The first indicated a date of March 25, 2016, was purportedly by S3 to the file but was seemingly directed to Complainant and represented that Complainant and his coworkers have authority to access CCTV for real-time footage, but not previously recorded footage. 2019004825 6 The second indicated a date of April 24, 2016, was purportedly by S3 to S1, and represented that S3 asked S1 to issue a memorandum “dated appropriately,” with the assistance of S2 recounting that Complainant was instructed not to access the CCTV. The third memo indicated a date of April 28, 2016, was purportedly by S1 to S3, and represented S1 advised Complainant that the collective bargaining agreement (CBA) did not entitle him to have representation present when he answered S1’s written investigatory questions (regarding his accessing the CCTV). The first two memos Complainant submitted were to support his argument that the memos by S1, S2, and S3 associated with the first proposed removal were backdated and false. After Complainant’s oral reply, S4 rescinded the first proposed removal and replaced it with a second proposed removal (issue 16). The second proposed removal repeated the same failure to follow directions charge that was in the first. In the second proposed removal, S4 also charged Complainant with a lack of candor in support of his oral response to the first proposed removal. Specifically, Complainant was charged with fraudulently creating and forging the three above- referenced memoranda submitted during his oral reply to the first proposed removal, and with falsely stating two of them appeared in his backpack and S3 gave him the third. S4 found that Complainant forged the signatures of S3 by copying them from the S3’s memos dated March 24, 2016, and April 24, 2016, associated with the first notice of proposed removal, and the signatures were identical. We observe that the matching signatures are strikingly similar or the same. Complainant claimed that while he viewed real-time CCTV footage on April 22 and 23, 2016, at no time prior to his viewing on April 23, 2016, did management tell him this was prohibited. In the FAD, the Agency found that management charged Complainant with failure to follow directions for the reasons recounted in the charge. While Complainant alleges the charge was based in discrimination and retaliation because management knew the facts supporting the charge were untrue, he has not shown this by a preponderance of the evidence. The Agency’s explanation for the charge is supported by the referenced memos of S1, S2, and S3. Also, in his affidavit, S2 denied that his March 31, 2016 memo to the file was backdated or false, and stated he told Complainant he could only access CCTV footage with clear authorization from management. In its FAD, the Agency found that management charged Complainant with lack of candor for the reasons stated in the second proposed removal. S4 appointed a Lead Transportation Security Manager (Investigator 1) (White, Hispanic, American), who was not involved in the Behavior Detection Program, to do a fact-finding on the authenticity of the two referenced memos purportedly by S3 Complainant submitted. After interviewing S1, S3, and Complainant, and examining the memos, Investigator 1 concluded that Complainant created them. Investigator 1 wrote that S3 denied creating or signing the memos, that S1 stated he never saw the memo S3 purportedly sent to him, and that S3 stated the format of the memos was different from what he uses and gave examples, e.g., different font. S1 separately wrote that he did not believe he wrote the purported memo by him dated April 28, 2016, to S3. He recounted it was different from what he would draft based on the font, the wording used (he provided several examples), and that the substance of the memo was wrong. S3 wrote a memo to S4 that he never received the April 28, 2016 memo. 2019004825 7 While Complainant alleges the lack of candor charge was based in discrimination and retaliation because management knew the facts supporting the charge were untrue, he has not shown this by a preponderance of the evidence. In fact, the weight of the record supports the charge. Because Complainant was a law enforcement officer, the lack of candor charge is particularly significant. Many of the remaining issues are connected with the proposed removal, such as issue 18 - OOI not investigating the authenticity of the three memos that support the lack of candor charge, issue 20 - the decision to remove him that upheld the proposed removal, and issues 32, 34, and 35 - the three memos that accompanied the first proposed removal to support of the failure to follow directions charge therein that was repeated in the second proposed removal that Complainant contended were backdated and false. Except the removal decision, we have already addressed these matters. We find that the Agency’s decision to uphold the proposed removal was not discriminatory for the same reasons we found the second proposed removal was not discriminatory. Regarding issue 17, S1 denied calling Complainant a fucking bitch. ROI, Ex. F4, at 13, Bates No. 923. We find this credible. Regarding issue 19, S2 explained that all Behavior Detection Officers are required to call the office when they leave the screening area for any purpose because they work in teams with little supervision, and at least two Behavior Detection Offices must be at the checkpoint to be effective - one to engage the passenger, one to observe reactions. We find this credible. Regarding issue 30, alternate S1 no longer works for TSA, and declined to participate in the investigation. Taking into consideration this case as a whole, including Complainant’s lack of credibility (fraudulent memos), without more, Complainant has not proven discrimination or retaliation regarding issue 30. The remaining issue - issue 33 fails to state a claim because it uses the EEO process to collaterally attack the negotiated grievance procedure process, i.e., the right to union representation outside the EEO process is determined by interpreting the collective bargaining agreement (CBA) 2 in the negotiated grievance procedure. Sadler v. USPS, EEOC Appeal No. 0120130801 (Apr. 26, 2013) (EEO complaint claim about denial of a union representative is a collateral attack on the negotiated grievance process). Accordingly, this issue is dismissed for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The FAD is AFFIRMED. 2 In the forged memo by Complainant from S1 to S3, S1 purportedly said that nothing in the CBA entitles him to representation when answering questions in writing. 2019004825 8 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. 2019004825 9 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 August 10, 2020 Date