Armand L.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

May 20, 2016

0120140092 (E.E.O.C. May. 20, 2016)

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

Armand L.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120140092
Hearing No. 530-2012-0022X
Agency No. HSTSA001082012

DECISION

Complainant filed a timely appeal from the Agency’s September 20, 2013, final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. For the following reasons, the U.S. Equal Employment
Opportunity Commission (EEOC or 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 (TSO), SV-1802, E-Band, at Middletown Airport, Middletown, Pennsylvania.
On December 9, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and reprisal (prior protected
EEO activity) when: (1) on an unspecified date in 2011, his Supervisory Transportation
Security Officer (STSO) added derogatory language to his Performance Accountability and
Standard System (PASS) evaluation2 after meeting with him to discuss his evaluation; (2) on
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 The undisputed record shows that PASS reviews are conducted twice a year in which an
employee's supervisor evaluates different components of the employee's work performance.
In addition to an overall score, PASS reviews may contain comments which explain or
supplement the supervisor's rating.

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unspecified dates in 2011, his sick and annual leave requests were handled differently than
those of Caucasian employees3; and (3) on September 13, 2011, he received a letter of
guidance.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s August 10, 2012, motion for a
decision without a hearing and issued a decision without a hearing on August 14, 2013. 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.

AJ’S FACTUAL FINDINGS

The AJ noted the following undisputed facts in his decision. Complainant held his position
since March 16, 2008. During the relevant time-frame, Complainant's first and second-line
supervisors were STSOs (S1 and S2). Complainant believed S1 is prejudiced against Black
people. Complainant held this belief since he began working as a TSO in 2008. Complainant
has not identified any specific examples to support this belief. Complainant completed the
Agency's On-line Learning Center (OLC) training titled "Introduction to Civil Rights" in 2008,
2009, 2010 and 2011. The required course notified Complainant "when and how to contact the
Office of Civil Rights." During this course, Complainant was cautioned that: "to initiate the
EEO complaint process and have an EEO specialist assist you, please contact the Office of
Civil Rights within 45 days of the alleged discriminatory event. Failure to make a timely
complaint may result in a loss of your rights."

In September or October 2009, Complainant filed a prior EEO complaint based on race and
reprisal with S1 named as the principal harasser. Complainant's prior EEO activity consisted
of a summary of a pre-disciplinary discussion dated October 6, 2009, and a letter of counseling
dated October 15, 2009. This case (HS-TSA-00228-2010, EEOC 530-2011-00018) was settled
before the Commission effective March 8, 2011. S2 was not named in this prior complaint.
Complainant stated he had informed S2 about it in early 2011. S2 admitted that she became
aware of Complainant's prior EEO activity on March 8, 2012.

On July 3, 2011, Complainant asked S1, "What are the chances of me getting off tomorrow on
July 4?" to which S1 responded, "Not much." On July 4, 2011, Complainant called in sick
because his mother was in the hospital. S1 called Complainant's house, at S2’s request, and
told Complainant's daughter that Complainant needed to bring in a doctor's note. On this
same day, S2 called the home of another TSO (C1) (Caucasian, prior EEO activity unknown)
because he had previously been denied leave for that day and had called in sick. C1 was also
required to bring in medical documentation. S2 contends she told S1 to call Complainant's
home because of the conversation Complainant had with S1 on July 3, 2011. S2 stated this
3 Complainant did not include reprisal as a basis for Claims 1 and 2.

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was the only time she had ever asked a supervisor to call Complainant's home to request a
doctor's note. In late 2011, Complainant's father-in-law passed away and Complainant
requested leave to attend the funeral. S2 told Complainant that he needed to bring in the
funeral program. S2 stated that she asks everyone who requests bereavement leave to attend a
funeral to show her a funeral program.

Complainant stated that on about three or four occasions in 2011, S1 and S2 handled his
requests for leave differently than those of Caucasian employees. Complainant was not able to
identify the specific dates of these other occurrences. Complainant asserted after he filed his
EEO complaint, it seemed his requests for leave were not being granted. Complainant also
asserted that the frequent annual leave requests of a TSO (C2) (Caucasian, prior EEO activity
unknown) were granted 95% of the time. S2 explained that C2 was not similarly situated to
Complainant as C2 was out on approved medical leave and had a medical arrangement with
TSA in 2011. Complainant failed to provide a rebuttal to this information.

Complainant also asserted that when there is low passenger flow, unidentified Caucasian
employees are allowed to leave early while African-American employees are not. The AJ
noted that Complainant did not proffer any evidence on such. Only two annual leave requests
are approved per shift per day. S2 was responsible for reviewing all of the leave requests for
Complainant's P.M. shift. In 2011, of the 106 denied leave slips and “early outs,”4 only one
of them was for Complainant. Complainant's request was for Christmas day and was denied
because there were four other people ahead of him who had also been denied. Complainant
had conversations with S1 and S2 about his leave being denied. Complainant stated that they
did not respond to his allegations concerning the denial of his annual leave during these
discussions.

On August 28, 2011, there was an incident with a family who was having some issues with the
contents of their bags at the security checkpoint. Complainant observed the passengers being
loud and argumentative about TSA baggage policies. Complainant took a few steps away from
his post to call a law enforcement officer (LEO) who was nearby to assist with defusing the
situation because he thought "a fight or something could break out." The Lead Transportation
Security Officer (LTSO) (Caucasian, no prior EEO activity) was at the checkpoint when the
August 28, 2011 incident occurred. He stated that the passengers were very loud and
disruptive at the time that S1 decided to go on break. S1 claimed that nothing was going on
when he left.

On September 13, 2011, S1 gave Complainant a letter of guidance. S1 stated the reason for
the letter of guidance was "simply [for] written guidance that it was not [Complainant's] call to
make to call a LEO. That was the call of [an LTSO] or supervisor." Complainant believed
4 "Early outs" are requests for annual leave by an employee to leave earlier than their shift
ends. Early outs are approved or disapproved at the discretion of the supervisor and are not
approved in advance. Early outs are generally approved by a supervisor if the STSO can
operationally afford to let employees leave early.

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that S1 issued the letter of guidance because S1 was named as the main harasser in
Complainant's prior EEO complaint. Complainant stated he believed he acted in accordance
with a TSA rule that states "if a TSO feels like he or a fellow employee believes he is
threatened, the TSO has the right to call a police officer." S1 also issued a letter of guidance
to the LTSO with respect to the August 28, 2011 incident because "he did not use good people
skills to de-escalate the situation and further inflamed it.”

During the fall of 2011, Complainant had his PASS evaluation with S1. A Lead TSO was also
present during this evaluation. Complainant stated that S1 did not have a Lead TSO present
during any of his coworkers' PASS reviews. Complainant did not proffer any evidence
supporting this statement. S2 stated that she was aware that a Lead TSO was present during
Complainant's PASS review with S1. S1 wanted a witness present during Complainant's
PASS review because of Complainant's previous complaints against him. S2 also stated that as
a matter of policy, supervisors can have anyone at the TSO or above to sit in on the
evaluations as a witness to the conversation for the benefit of the TSO and also the Supervisory
TSO. It is also a mentoring ability for the Lead TSOs.

S1 stated he had a Lead TSO present at other employees' interviews in 2011, but did not
identify those employees. Moreover, Complainant failed to identify any particular employee
where S1 did not have a Lead TSO present during that employee's PASS interview.
Complainant stated that he noticed a few days after his PASS review that S1 commented that
Complainant "needs not be so loud on the checkpoint and [should] spend more time engaging
peers with work related topics." This comment was dated April 20, 2011. Complainant found
this language to be derogatory. Complainant also claimed that it was not discussed in his
PASS meeting with S1. However, S1 stated that Complainant's voice volume was discussed
during the meeting. S1 also stated that Complainant signed his review on the day it was
conducted and the language at issue was included in the review at that time. On May 6, 2011,
Complainant wrote a response to the April 20, 2011 comments, stating they were "unfair and
inaccurate and inappropriate."

S2 stated that "[s]upervisors write up PASS information after discussing it with an employee.
Supervisors enter information into the PASS [database] based on their PASS interviews. That
way they can increase the rating if they feel that an employee deserves it after hearing their
explanation of things. Supervisors discuss both positive and negative issues with employees
during PASS meetings."

By the time Complainant received his final PASS evaluation, he had already informed the
Agency of his intent to file a claim. The record does not indicate the manner in which
Complainant informed the Agency of his intent. Complainant also received the same ratings in
2011 as he had in the previous year. Complainant attempted to meet with S1 and/or S2 but
never received any response to his requests. The record does not include specific dates.
However, Complainant stated he had various written correspondence and emails. The Agency
disputed this. Complainant's ultimate PASS score for the rating period was 86.60 points. The
record does not indicate whether this score is less than a Fully Successful rating.

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AJ’S FINDINGS AND CONCLCUSIONS

Procedural Dismissal

The AJ concluded that some of Complainant's claims are untimely because he failed to raise
them within 45 days of the date of the alleged discriminatory or retaliatory event. Specifically,
the AJ noted that Complainant received online EEO training from 2008 through 2011 and was
aware of the EEO timeframes. The AJ further noted that the April 20, 2011 derogatory
comments in his PASS review and the incident on July 4, 2011, regarding use of his sick leave
were untimely because his initial EEO contact was October 13, 2011, beyond the 45-day time
limitation. See 29 C.F.R. 1614.105(a)(2). The AJ also concluded that the claim that
Complainant's PASS review contains derogatory language failed to state a claim on the basis of
race because it did not negatively affect a term, privilege or condition of Complainant's
employment. See 29 C.F.R. § 1614.107(a). However, the AJ noted that such analysis does
not apply to the reprisal claim.5

PASS Review

With respect to the PASS review, the AJ concluded that Complainant failed to identify any
similarly situated individual who was treated differently. Complainant failed to identify a
comparator outside his protected class who did not have an LTSO present during his or her
evaluation. The AJ noted that S1 stated he had had LTSOs present during other employees'
PASS reviews, although he did not specify who these employees were. In addition, S1
explained that it was particularly important to have a witness present during any meetings with
Complainant as a precautionary measure in the event that some conflict arose. In addition, the
AJ noted that Complainant did not present evidence establishing that S1’s decision to have an
additional LTSO present during the PASS review to be motivated by discriminatory or
retaliatory motives.

Derogatory Language

Complainant alleged discrimination by the Agency on the basis of race because there were
comments included in his PASS review which Complainant interpreted as derogatory language.
The Agency maintains that the comments were not derogatory but instead were related to
Complainant's speech while in the work environment. The AJ noted that despite these
comments, Complainant received a score of 86 points which does not suggest any adverse
action by the Agency. Furthermore, the AJ noted that Complainant did not identify a similarly
situated individual outside of his protected class who did not receive what Complainant
considered to be derogatory language in his or her PASS review and Complainant failed to
present evidence of discriminatory animus on the part of the responsible management official.
5 The AJ also concluded that the record was devoid of evidence of disparate treatment or
reprisal animus with respect to this issue.

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Leave Requests

The AJ noted that Complainant identified two specific instances in which he allegedly was
subjected to discrimination with respect to leave. The first was when the Agency called his
home when Complainant called in sick on July 4th. The second instance was when the Agency
requested a funeral program to confirm the reason for his absence. The Agency stated its
reason for calling Complainant's home was based on the fact that he called in sick on a holiday
for which his leave request had been previously denied. Furthermore, the Agency was acting
in accordance with policy when it required Complainant to provide a funeral program. The AJ
concluded that such non-discriminatory reasons validate the Agency's actions and did not
create an inference of discrimination on the basis of race.

Complainant also claimed he experienced adverse treatment from other instances where his
sick and annual leave requests were purportedly handled differently than his Caucasian
coworkers. The AJ concluded that Complainant's argument was specious because he did not
cite any specific occurrences to support this claim. The Agency had made clear that there are
certain circumstances under which a sick or annual leave request is granted. In Complainant's
case, he was only denied leave once and that was because there were four other employees
who had been denied before him. The AJ further noted that Complainant did not proffer
evidence to establish pretext or that the employment actions were motivated by race or
Complainant’s prior EEO activity.

Letter of Guidance

Complainant stated he endured adverse treatment on the bases of race and reprisal when he
received a Letter of Guidance. The AJ found the Agency's non-discriminatory reasons for
issuing this letter were to simply instruct Complainant about the proper procedures for
handling that situation. It did not serve as a reprimand or punishment for Complainant's
conduct, and therefore did not result in any adverse action relating to Complainant's
employment. Furthermore, there was no term, privilege or condition of Complainant's
employment which was changed in a negative way as a result of the letter of guidance. The AJ
also noted that the record is devoid of evidence that the issuance of the Letter of Guidance was
motivated by discriminatory animus and noted that LTSO, who is outside of Complainant's
protected class, also received a letter of guidance concerning the same incident.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.

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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 the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Upon review of the record, we agree with the AJ’s analysis and
conclusions herein. We note that the record is devoid of evidence that any responsible
management official held discriminatory or retaliatory animus toward Complainant.

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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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).

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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

May 20, 2016
Date