Booker P., Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Jul 27, 2017

0120151085 (E.E.O.C. Jul. 27, 2017)

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

Booker P.,
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120151085

Hearing No. 430-2013-00111X

Agency No. HS-TSA-22381-2012

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 5,
2015, final decision concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Master Behavior
Detection Officer, SV-1802, F-Band, at the Agency’s Wilmington International Airport in
Wilmington, North Carolina. On August 7, 2012, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of age (44) and in reprisal for prior
protected EEO activity when:

1. on December 31, 2011, Complainant was given a verbal warning for not providing notice
that he was going to incur fifteen minutes of overtime on the previous day;

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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2. on March 12, 2011, a Supervisory Transportation Security Officer (STSO) directed
Complainant to wear a long sleeve shirt to cover a tattoo;

3. on March 19, 2012, Complainant discussed the fact that a younger TSO had tattoos on his
hands with a Transportation Security Manager (TSM) and an Assistant Federal Security
Director (AFSD), and was verbally responded to with inappropriate comments by the
AFSD;

4. on March 19, 2012, Complainant was directed to cover his tattoos by the AFSD while she
did not direct the two younger TSOs to cover their tattoos;

5. between March 19, 2012 and April 15, 2012, Complainant was directed not to wear a tie
to work by an STSO because it made other employees younger than 40 look sloppy or
bad;

6. on March 22, 2012, Complainant met with two SPOT Transportation Security Managers
(STSM) regarding his problems concerning his tattoos with the STSO and the AFSD, and
was informed that they would take no action;

7. between April 15, 2012 and continuing, an AFSD, a TSM, an STSO, and a Human
Resource Specialist have been harassing Complainant with unnecessary calls at home,
causing undue stress; and

8. on June 12, 2012, Complainant learned that he was in a “no leave/no pay” status, even
though he had been approved for Family Medical Leave Act leave and 327 hours of
donated annual leave.

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). Complainant requested a hearing. The AJ
dismissed the hearing request on the grounds that Complainant failed to submit a pre-hearing
report. The AJ remanded the complaint to the Agency, and 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.

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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Hostile Workplace Harassment (Claims 1 – 7)

To establish a claim of harassment 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 classes; (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). 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).

Therefore, in order to establish his harassment claim, Complainant must show that he was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis.

With regard to Complainant’s allegations of harassment and hostile work environment, we have
previously found that routine work assignments, instructions, and admonishments do not rise to
the level of harassment because they are common workplace occurrences. See Gray v. United
States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). The events giving rise to the
allegations here, including disputes about the circumstances under which tattoos are displayed in
the workplace, come within that rule. Unless it is reasonably established that the common
workplace occurrence was somehow abusive or offensive, and was taken in order to harass
Complainant on the basis of any of his protected classes, we do not find such common workplace
occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or
harassment as Complainant alleges. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal
No. 0120130465 (Sept. 12, 2014). Here, the alleged discriminatory acts are not so severe or
pervasive as to alter the conditions of Complainant's employment.

Disparate Treatment Discrimination (Claim 8)

To prevail in a disparate treatment claim such as this, 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 where 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); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
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(Nov. 13, 1997). 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
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Here, the Agency explains that Complainant was not credited with leave for the time in question,
and therefore not paid for that time, because he had exhausted all of the Voluntary Leave
Transfer Program (VLTP) hours he had requested. When Complainant requested additional
VLTP hours, the transfer of the hours was approved and he was compensated for those hours.
This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant does not
dispute the accuracy of the Agency’s explanation. Complainant has failed to adduce any
evidence that the Agency’s explanation is a pretext designed to conceal discriminatory 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
has not established that he was discriminated against and harassed as alleged.

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
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(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.
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

July 27, 2017
Date