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

Equal Employment Opportunity Commission

Oct 25, 2018

0120172004 (E.E.O.C. Oct. 25, 2018)

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

Felix R.,1
Complainant,

v.

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

Appeal No. 0120172004

Hearing No. 510-2015-00071X

Agency No. HSTSA017852013

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 April 12, 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 officer, SV-1801, E band, at the Agency’s Miami International Airport facility in
Miami, Florida.

In March 2013, prior to the instant complaint, Complainant filed an EEO complaint.
Complainant alleges that on March 19, 2013, a manager (MGR1) verbally assaulted him when
she stated, “You better know how to pick a fight, because the fight that you are picking, you are
going to lose it.” Complainant indicated this was about his EEO complaint.

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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On June 2, 2013, Complainant began a week of unscheduled leave. Complainant was due to
report back to work on June 8, 2013, but he was not able to return on time, due to inclement
weather; he called and requested sick leave for the weather-related absence. The Agency’s
management did not immediately approve the request. The computerized time and attendance
system automatically coded him as absent without leave (AWOL). Complainant’s leave request
was subsequently approved on July 19, 2013. The AWOL code was removed.

On June 4, 2013, while Complainant was on leave, Agency management scheduled SOP
Assessments. They did not inform him that his assessment was scheduled for June 19, 2013. On
June 20, 2013, Complainant was notified by email that he had failed to appear for his assessment
and it had been rescheduled for June 24, 2013. In the meantime, he was not to perform any
screening functions. He was not disciplined in relation to this incident.

On September 3, 2013, Complainant met with Agency managers regarding a mediation letter
relating to the prior complaint filed in March 2013. According to Complainant, he was spoken to
rudely and threatened with being written up for insubordination.

On November 13, 2013, Complainant filed an EEO complaint alleging that the Agency subjected
him to a hostile work environment and discriminated against him on the basis of reprisal for prior
protected EEO activity when, on March 19, 2013, he was verbally assaulted by MGR1; and on
June 19, 2013, he was informed by email that the leave request he submitted on June 8, 2013 was
approved. The report of investigation shows he also alleged that the Agency subjected him to a
hostile work environment and discrimination on the basis of reprisal when, on June 19, 2013, he
was scheduled to take the SOP Assessment but was not informed of it and was recorded as a “no
show”; on June 22, 2013, he received an email indicating he could not perform any of his duties
until he took the SOP Assessment; on July 1, 2013, a manager (MGR2) “was resentful” in
responding to his inquiry about the June 19, 2013 email regarding his leave request; and (4) on
September 3, 2013, management spoke to him rudely and told him he was close to
insubordination.

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.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 6, 2015,
motion for a decision without a hearing and issued a decision without a hearing on April 12,
2017. 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.

CONTENTIONS ON APPEAL

On appeal, Complainant alleges there are disputed issues to be resolved. On March 19, 2013,
MGR1 issued a challenge to fight, throwing at him a litany of reasons why he should not
continue with his EEO complaint and he was unable to say anything.
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MGR2 prejudicially denied the leave request and there are disputes as to what he meant when he
said he was not going to approve it without asking Complainant questions. Management failed to
notify Complainant of the SOP Assessment and take appropriate actions when notified of his
absence from the exam. MGR2 humiliated him in front of a co-worker by not listening to his
explanation regarding the AWOL status. Management is attempting to present him as
untrustworthy as relating to the June 19, 2013 conversation. MGR1 threatened him with being
close to insubordination and portrayed him as undisciplined.

In response, the Agency asserts that Complainant was not subjected to discrimination.
Complainant has failed to come forward with evidence that raises an inference of discrimination
and, thus, cannot establish a prima facie case of discrimination. Even if he could establish a
prima facie case, he cannot produce any evidence that any of the incidents were not done for
legitimate, non-discriminatory reasons and were a pretext for discrimination. There is no
evidence that any discrete acts were accompanied by abusive conduct or language and, even
viewing the alleged incidents together, they are not sufficiently severe or pervasive to constitute
a hostile work environment.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. §
1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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. 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. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is not appropriate.

Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact. Complainant was given ample notice of the Agency's motion for a decision without
a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity
to respond to such a statement, and the chance to engage in discovery. We find that, even
assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as
explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was
appropriate.
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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 based on
reprisal, his claim ultimately fails, as we find that the Agency articulated legitimate, non-
discriminatory reasons for its actions. With respect to Complainant’s leave request, the Agency
asserts that the AWOL was automatically coded by their computerized time and attendance
system and subsequently corrected. Complainant’s leave was ultimately approved and the
AWOL coding was removed from his time and attendance record. Complainant did not receive
any discipline with respect to this incident. With respect to Complainant’s SOP Assessment, the
Agency has established that it was an oversight, as Complainant was on leave at the time the
schedule was emailed. Complainant’s assessment was rescheduled and, as in the other instance,
Complainant did not receive any discipline with respect to this incident. 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.

With respect to Complainant’s allegations that the Agency subjected him to a hostile work
environment, we find that Complainant has failed to establish a prima facie case. Even if his
allegations that his managers subjected him to rudely or resentfully or in assaulting or
threatening ways were true, we find they are insufficiently severe or pervasive as to have altered
the conditions of his employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (October 16, 1998); and 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 regarding the statements of
Complainant’s managers, 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.
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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. 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.
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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

October 25, 2018
Date