Art B.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

0120181731 (E.E.O.C. Aug. 29, 2019)

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

Art B.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120181731
Hearing No. 520-2017-00582X
Agency No. HS-HQ-01243-2010

DECISION

On May 3, 2018, 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
March 27, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant demonstrated that the Agency’s final agency decision
(FAD) erred in finding that he was not subjected to discrimination and harassment as he alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Specialist. Complainant was selected for a detail assignment, as a Senior Watch Officer
(SWO), at the Agency’s National Operations Center (NOC), in Washington, D.C. He was
removed from the detail on April 16, 2010, following concerns about his performance and an
airline incident, (Denver incident) that occurred on April 7, 2010.

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.
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Management maintained that Complainant was removed because he failed to meet the standards
of the SWO position. Complainant’s supervisors raised concerns about his decision-making
abilities, his inability to manage complex, time-sensitive events, his writing skills, his lack of
effective communication skills, and his lack of comprehension of the relevance of occurrences.
Also cited was the Denver incident for which the Agency asserted that Complainant failed to
follow established Agency security procedures; failed to properly notify senior Agency leadership
of the incident; and failed to notify the Agency’s Deputy Director which resulted in the Deputy
Director’s unpreparedness in participating in a teleconference the night of the occurrence and
which also resulted in the reassignment of one official and the issuance of a “reprimand” to the
NOC Director.

Complainant alleged that he was treated differently than other SWOs who were involved in similar
incidents. Complainant identified one particular incident involving SWOs that occurred on a
December 25, 2009, flight (the Christmas Day incident) to Detroit, Michigan. Further,
Complainant indicated that there was a problem with the communications systems on the day of
the Denver incident that effected everyone in the office. Also, Complainant maintained that he
received an Outstanding performance appraisal for his work, therefore, the Agency’s contentions
regarding the reason for his removal were false and not supported by the record.

On August 24, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of race (African-American) when:

1. On April 7, 2010, management subjected him to harsher scrutiny than his co-
workers following an aviation incident; and

2. On April 16, 2010, management removed him from his J-Band detail assignment.

Complainant requested a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). On April 13, 2012, the Agency moved for summary judgment.
Complainant submitted an untimely request to file a response. The AJ denied the motion. In so
ruling, the AJ noted that it was not until May 23, 2012, when Complainant made his request to file
a response, and that it should have been filed on May 1, 2012. The AJ granted the Agency’s motion
for summary judgment, finding that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the AJ found that management explained that Complainant failed to
meet the requirements of his position, and, Complainant failed to show that the reasons were
pretext for discrimination.

Complainant filed an appeal, and the Commission, in EEOC Appeal No. 0120123143 (Jul. 2,
2015), found that, among other things, there were genuine issues of material fact in dispute
regarding Complainant’s performance, as his performance appraisal indicated that he was regarded
as exceeding expectations. The Commission found that the AJ’s granting of summary judgment
was in error, because there were simply too many unresolved issues which required an assessment
as to the credibility of management officials, co-workers, and Complainant and which required the
determination whether discriminatory animus, a factual finding, was the real reason for the
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Agency’s actions. Because judgment as a matter of law for the Agency should not have been
granted, the Commission vacated the Agency’s decision and remanded the matter for a hearing
before an Administrative Judge.

Complainant subsequently withdrew his request for a hearing and requested a FAD. 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. The
Agency maintained that assuming Complainant established a prima facie case of race
discrimination, it articulated legitimate, nondiscriminatory reasons for its actions. Specifically,
the Agency found that after several serious incidents, (the Denver incident, poorly written
memorandum, the forgetting of senior official’s names, and problems with his staff) Complainant
was not performing as was expected.

To show pretext, the record indicates that Complainant maintained that other SWO’s experienced
technical difficulties during these high-profile incidents but were not treated the same way that he
was. Complainant also maintained that he received an Outstanding on his performance appraisal,
so his performance could not be as bad as described by the Agency. However, the Agency
explained that the performance appraisal was created by Complainant’s former supervisor and that
his new supervisor was told to sign the appraisal, which he did. The new supervisor maintained
that during his time working with Complainant, he only saw problem after problem and in no way
agreed with the performance appraisal that had been issued to Complainant. Several other
management officials agreed that Complainant was not performing at the level expected and
therefore, his detail was terminated.

The Agency found that Complainant did not demonstrate that the Agency’s reasons were pretext
for discrimination or that discriminatory animus was involved. The Agency maintained that
Complainant was not subjected to harassment, as the incidents cited were performance-based
incidents that were not severe or pervasive enough to establish a hostile work environment.

CONTENTIONS ON APPEAL

Neither Complainant nor the Agency submitted briefs on appeal.

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”).

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Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that assuming, arguendo, Complainant established a prima
facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for
its actions, namely that Complainant did not perform to the level expected. To show pretext
Complainant maintained that other SWOs were treated more favorably, however, our review of
the record does not support Complainant’s contention. We find no persuasive evidence that
Complainant was treated differently than other SWOs based on unlawful discriminatory reasons.
The record shows that Complainant, as the newest and least experienced SWO, faced many
challenges that required additional supervisory input. While the record does demonstrate that
Complainant was subjected to heightened scrutiny, it also reveals that Complainant’s position
involved matters of the upmost security, which required interactions with higher levels of
supervisory review. Nevertheless, the evidence does not support Complainant’s contentions that
the way he was treated was based on his race. Therefore, we find that Complainant did not
demonstrate that the Agency’s reasons were pretext for discrimination or that discriminatory
animus was involved in the Agency’s decisions.

We find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)
that Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile
work environment is precluded by our determination that Complainant failed to establish that any
of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v.
United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, we find
that Complainant did not demonstrate that he was subjected to race discrimination and harassment
as he alleged.

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CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD.

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.

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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

August 29, 2019
Date