Brant E.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Dec 13, 2018

0120172850 (E.E.O.C. Dec. 13, 2018)

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

Brant E.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120172850

Hearing No. 510-2014-00478X

Agency No. HSTSA216502012

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 24, 2017
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Specialist - Explosives, H Band, at the Agency’s Orlando International Airport (MCO)
facility in Orlando, Florida.

On April 2, 2012, Complainant filed an EEO complaint alleging that the Agency subjected him
to discrimination and a hostile work environment in reprisal for prior protected EEO activity. His
allegations included a series of events beginning in mid-September 2011, relating to his having
been accused of sexual harassment and/or workplace violence.

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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During the Agency’s investigation of the complaint, the Agency transferred Complainant from
his work location (MCO) to Orlando Sanford International Airport (SFB). Complainant was
initially provided a government car to travel to SFB, but management revoked that privilege and
advised him to use his personal car. His supervisor advised him that if he applied for mileage
reimbursement for travel to SFB, he would be transferred to SFB permanently. In November
2011, Complainant was cleared of all charges. In mid-December 2011, Complainant was told by
his supervisor that Complainant was still in SFB due to a “dick measuring contest” between the
supervisor and another manager. Complainant was not transferred back to MCO until January 2,
2012.

On December 16, 2011, Complainant sought EEO counseling regarding the instant complaint.

After he was transferred back to MCO in January 2012, Complainant had several conflicts with
management and his co-workers. He amended his complaint to include issues relating to
schedule changes, duty assignments, his performance management plan and evaluations, awards,
and consideration for other positions; being under surveillance by other Agency employees;
being spoken to unpleasantly or in a derogatory manner by co-workers and management; being
told management wanted to terminate him; management’s directing his co-workers to provide
statements relating to him; management’s disclosing his performance evaluation and other
personal information to his peers; management’s issuance of a proposed 14-day suspension; and,
after receiving an unfavorable comment card, being placed under investigation, having his
computer taken away, being subject to a urinalysis, and being removed to another duty station.

The Agency accepted the complaint and conducted an investigation. The Agency’s management
provided the following pertinent evidence.

Complainant and the co-worker who accused him of sexual harassment shared the same narrow
hall space, copier, and exit door and would likely have seen each other on a regular basis, if
Complainant had not been moved. Complainant was moved to SFB during the investigation to
prevent any further allegations of harassment. Such a reassignment is also consistent with
Agency management directives.

The investigation of the sexual harassment allegations against Complainant resulted in
Complainant receiving a letter of counseling addressing employee responsibilities and conduct.
There was no time limit on Complainant’s reassignment. Management needed time to plan for
Complainant’s return, including notifying all parties, and holiday leave and scheduling was such
that it made sense for the Agency to leave Complainant at SFB until the new year.

As a matter of practice, Agency employees can be administratively moved between offices
within 50 miles of each other without any additional relocation or transportation costs, since it is
considered the same commuting area. MCO and SFB are within a 32-mile drive of each other
and, therefore, in the same commuting area. Employees are required to use their personal
vehicles to commute to and from their homes and their duty station.
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Requiring Complainant to commute to SFB, using his own car, as opposed to commuting to
MCO, then taking a government vehicle to SFB, while on government time, was consistent with
the Agency’s management directives. Employees are generally not reimbursed for personal
commuting costs.

Management requested employee statements concerning Complainant in response to a
complaint. There was also an unsolicited employee statement including allegations that
Complainant had made some negative comments about other employees.

Management contended they did not release Complainant’s evaluation or other personal
information. While there were other employees at meetings concerning Complainant’s
performance, Complainant did not object and even requested the presence of others at some of
these meetings.

Management indicated that employee scheduling has been an ongoing challenge, as they are
always looking for ways to improve. One Agency manager’s responsibilities includes spot
checking or observing employees in their duties. There were various reasons for changes in
Complainant’s duties and/or core competencies, including his attitude and complaints about his
performance or poor representation of the Agency. Changes in Complainant’s goals or duties had
no detrimental impact on his performance evaluation and removing some activities benefitted
Complainant as it lowered or decreased the standards he had to meet.

Complainant did not get the Player of the Day award because, while some members of
management were under the impression Complainant was to be considered for the award, the
person responsible for submitting Complainant for it did not submit his name. Complainant was
not the only employee whose submission was “lost in the shuffle.”

Agency management denied lowering or falsifying Complainant’s performance evaluation, but
noted that, when performing the 2013 evaluations, Complainant’s supervisor had initially used
the prior year’s paperwork and his employees were required to re-sign their forms, using the
earlier date, but their scores did not change.

Complainant’s disruptive and inappropriate behavior is well-documented and, according to
management witnesses, his behavior is why he has not been considered for a leadership position.
It is common practice for people to be assigned leadership positions irrespective of seniority.

Agency management issued Complainant a proposed 14-day suspension based on the following
two charges of misconduct: conduct unbecoming and inappropriate/disruptive conduct. The
suspension was proposed, given that Complainant had received a letter of counseling for an
incident on October 7, 2013 and he continued to act improperly.

Agency management was currently investigating Complainant, including as relating to
fraudulent documents. Complainant’s computer was seized as part of this investigation.
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A passenger accused Complainant of making an inappropriate comment and management
decided to move Complainant until the investigation was complete.

Management randomly selected employees for urinalysis.

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 timely requested a hearing
and the AJ held a hearing on April 20 and 21 and May 18, 2017, and issued a decision on May
26, 2017.2 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.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that he engaged in protected EEO activity when he initially
contacted an EEO counselor on December 16, 2011; the Agency was aware of his participation
in that EEO activity; and the Agency subjected him to a hostile work environment and
discrimination on several occasions between January 2012 and March 2014, including the
allegations discussed above. Complainant argues that there is sufficient evidence to conclude
there is a nexus between his protected EEO activity and the Agency’s actions, including the close
proximity in time between the events. He also alleges that the AJ excluded evidence of a secret
plan by an Agency manager to fire Complainant and erred in relying on the MSPB decision that
the proposed suspension was supported by clear and convincing evidence. All the evidence must
be taken together in consideration of whether the Agency discriminated and created a hostile
work environment. Complainant also asserts that his being accused in the September 2011 sexual
harassment case is protected EEO activity, noting that he testified, assisted, and/or participated in
that EEO matter and that defending oneself against such charges is protected activity. He also
asserts that collateral estoppel does not apply to the issue decided by the MSPB, as it is
materially different from that before the Commission, as the issue before the MSPB was whether
the Agency would have issued the suspension without Complainant’s whistleblowing activity,

2 On November 2, 2016, while the hearing was pending, the AJ issued an order granting partial
summary judgment and a partial dismissal of Complainant’s claims. The AJ noted that, prior to
seeking EEO counseling on December 16, 2011, Complainant’s only involvement with EEO
activity was having been accused of workplace violence and/or sexual harassment as a
responsible management official, which is not protected activity under EEO regulations. The AJ
also noted that Complainant had appealed the proposed suspension to the Merit Systems
Protection Board (MSPB) and the MSPB found that the issuance of the proposed suspension was
supported by clear and convincing evidence. Thus, the AJ found the doctrine of collateral
estoppel applied to the matter of the proposed suspension.

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whereas the issue here is whether the Agency suspended Complainant because of his protected
EEO activities.

In response, the Agency asserts the record is devoid of any evidence of discrimination or that the
Agency subjected him to a hostile work environment. The Agency reiterates its findings relating
to numerous claims occurring prior to Complainant’s engaging in EEO activity in December 11,
2011, when he contacted an EEO counselor. The Agency argues that Complainant has failed to
establish a pretext for discrimination or a hostile work environment based on reprisal and asks
the Commission to affirm its FAD.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Complainant alleged that the Agency treated him disparately. A claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For a 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. These reasons are discussed above and include the following: (1) management
transferred Complainant to SFB during the sexual harassment investigation to prevent any
further allegations of harassment; he was returned to MCO when management had completed the
investigation and the necessary follow-up procedures; (2) changes in Complainant’s schedule,
duties, and/or core competencies were due to many factors, including the Agency’s needs,
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Complainant’s attitude, and complaints about Complainant’s performance; (3) the Agency had a
practice of observing employees to monitor performance; (4) while Complainant was considered
for an award, he was not the only person so considered who did not receive an award; (5)
Complainant’s supervisor mistakenly used the wrong form for his employees’ evaluations and
the employees were required to sign another one; (6) Complainant was not considered for a
leadership position because of his behavior issues; (7) management’s issuance of a proposed 14-
day suspension was due to two charges of misconduct and closely followed a letter of
counseling; (8) Complainant was placed under investigation relating to fraudulent documents,
which required the seizure of his computer and his removal from his duty station; and (9)
management randomly selected employees for urinalysis. Therefore, we find that Complainant
has not established by a preponderance of the evidence, that the legitimate, non-discriminatory
reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by
some unlawful discriminatory animus.

Complainant also alleged the Agency subjected him to harassment. In Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the complainant's employment and create a hostile or abusive
working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75
(1998). The Court explained that an “objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively
perceives it as such. Harris, 510 U.S. at 21-22. Thus, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.

We find that most of Complainant’s harassment allegations can generally be described as
relating to disagreements with managerial decisions and processes, including those relating to
assignments, reassignments, performance plans, and performance evaluation. Without evidence
of an unlawful animus, we have found that similar disputes do not amount to unlawful
harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014)
(The record established that the issues between the complainant and the supervisor were because
of personality conflicts and fundamental disagreements over how work should be done and how
employees should be supervised, and there is no indication that the supervisor was motivated by
discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes,
trivial slights and petty annoyances between a supervisor and a complainant do not rise to the
level of harassment). As a result, Complainant has failed to establish that he was subjected to
harassment as well, as he has failed to establish that discriminatory animus played any role in the
Agency’s actions.

We also note Complainant’s allegations relating to being insulted or called names, including
being called “a fucking piece of shit.” Even if these allegations were true, we find they are
insufficiently severe or pervasive to have altered the conditions of his employment.
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See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the
allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted
to charge him with AWOL, and disagreed with the time the complainant entered into a sign in
log, were found to be insufficient to state a harassment claim). The allegations, assuming they
are true, were isolated incidents that are insufficient to support a prima facie case of harassment.
See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993).

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 order.

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.
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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

December 13, 2018
Date