0120141747
06-30-2016
Bart L.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bart L.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120141747
Agency No. HS-TSA-22701-2012
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 4, 2014 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Federal Air Marshall (FAM) at the Agency's Chicago, Illinois Field Office.
On August 31, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (Mexican-American), disability (hip), age (over 40), and in reprisal for prior EEO activity when:
1. on July 13, 2012, while viewing the pending disciplinary worksheet that was located on the Transportation Security Administration (TSA) intranet site, he became aware that he had been subjected to disparate treatment when, in 2011, he was issued both a two-day suspension and a three-day suspension, while other Federal Air Marshalls (FAMs) who had numerous Letters of Counseling were not issued the same suspensions;
2. on July 13, 2012, he became aware that his privacy was violated when he saw a pending disciplinary worksheet on the TSA intranet site that included his pending disciplinary actions; and
3. from November 2009 until the present, he submitted a Freedom of Information Act (FOIA) request to the TSA, FOIA office but has not received a response.
After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew his hearing request. Consequently, the Agency issued the instant final decision on March 4, 2014, pursuant to 29 C.F.R. � 1614.110(b).
In its March 4, 2014 final decision, the Agency dismissed claims 2 - 3 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. Regarding claim 2, the Agency stated that the Commission has no jurisdiction over enforcing the Privacy Act. In addition, the Agency determined that claim 3 constitutes a collateral attack on the FOIA process. The Agency stated that Complainant should have raised his allegations through the FOIA process, not through the EEO process.
The Agency then proceeded to address claim 1 on the merits, finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, disability, age and retaliation.2 The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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 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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record reflects the following events leading up to Complainant's two suspensions. On January 27, 2011, the Assistant Special Agent in Charge issued Complainant a two-day suspension for failure to properly safeguard government property, missing a mission and failure to follow instructions. The two-day suspension was mitigated from a proposed five-day suspension.
On May 24, 2011, the former Assistant Special Agent in Charge (former Assistant Special Agent) issued Complainant a three-day suspension for tardiness and failure to follow instructions. The three-day suspension was mitigated from the proposed five-day suspension because Complainant took responsibility for his actions and made changes to improve his work performance.
In his affidavit, the Assistant Special Agent in Charge (Assistant Special Agent) stated that in regard Complainant's two-day suspension, Complainant initially received a proposed five-day suspension from the Supervisory Federal Air Marshall but he mitigated it to a two-day suspension. The Assistant Special Agent noted in his response to the proposed five-day suspension, Complainant "accepted responsibility for his actions describing them as 'inadvertent mistakes.' Complainant also argued that the charges and specifications in the Notice of Proposed Suspension should have been considered under the realm of 'performance' rather than 'conduct' because of an alleged lack of 'nefarious or malicious intent' on his part. He was reminded that disciplinary action may be taken in response to unacceptable performance and/or unacceptable conduct. Additionally, it was explained to him that unacceptable conduct includes a negligent failure to perform acceptably due to inattention to duty or negligence and that even though his conduct was neither nefarious or malicious, it was still negligent."
The Assistant Special Agent stated that he considered Complainant's overall performance, length of service and his acceptance of responsibility for his actions as mitigating factors. The Assistant Special Agent also stated that he noted the effort that Complainant "placed into preparation of his reply, it appeared that he took this matter seriously. However, Complainant's previous disciplinary history includes a two-day suspension he received on November 2, 2006 for misuse of his government issued cellular device. This suspension had also been mitigated from a proposed five-day suspension to a two-day suspension."
Further, the Assistant Special Agent stated "I would have been justified in issuing a more severe sanction, such as a three or four-day suspension or even upholding the initially proposed five-day suspension irrespective of Complainant's previous disciplinary history. Regardless, I ultimately decided to give Complainant the benefit of the doubt by mitigating, for a second time, the five-day proposed suspension to two days." Moreover, the Assistant Special Agent stated that Complainant's race, disability, age and prior protected activity were not factors in his decision to issue Complainant a two-day suspension.
With respect to Complainant's allegation that his discipline was not consistent to what other FAMs had received in similar circumstances, the Assistant Special Agent stated that he issued a Letter of Reprimand to a name FAM because he timely notified his supervisor of his mistake (missed an assigned mission believing he was assigned to a regular day off). The Assistant Special Agent stated that he also issued two named FAMs a one-day suspension because they took responsibility for their actions and had no previous disciplinary history.
Regarding Complainant's three-day suspension, the former Assistant Special Agent stated that during the relevant period Complainant "was involved in two incidents of showing up late for assignment. FAMs need to be at work on time. This was a law enforcement job driven by intelligence. FAMs need to show up early enough to receive an intelligence briefing, confirm they're in possession of issued equipment, and have their equipment checked by the team leader. The Complainant showed up an hour late, this is unacceptable...arriving late precludes the flow of information and prescribed equipment verification.
Further, the former Assistant Special Agent stated that he mitigated Complainant's proposed five-day suspension to a three-day suspension because Complainant "accepted responsibility for his actions; he didn't skirt the issue. The Complainant also mentioned actions that he was taking in order to arrive on time. These were valuable actions that the Complainant developed which warranted me lowering the recommended discipline." The former Assistant Special Agent stated that he did not discriminate Complainant based on his race, disability, age and prior protected activity.
In sum, neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the proffered reasons for the actions taken were a pretext for unlawful discrimination.
Claims 2 - 3
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of C.F.R. � 1614.103. The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. There is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. To the extent that Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).
Additionally, claim 3 constitutes a collateral attack on the negotiated grievance process. An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during FOIA process (such as not receiving a response concerning his FOIA request) is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the FOIA process.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision concerning claim 1 because the preponderance of the evidence of record does not establish that discrimination occurred and dismissal of claims 2 - 3 for failure to state a claim.
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).
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
June 30, 2016
__________________
Date
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 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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