Floyd C.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Feb 9, 2016

0120143086 (E.E.O.C. Feb. 9, 2016)

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

Floyd C.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120143086

Hearing No. 440-2012-00192X

Agency No. HS-TSA-00084-2012

DECISION

Complainant filed an appeal from the Agency’s September 24, 2014 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. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Master Center Coordination Officer at O'Hare International Airport
in Chicago, Illinois. On February 22, 2012, he filed an EEO complaint in which he alleged
that his immediate supervisor, a Supervisory Center Coordination Officer (S1) retaliated
against him for a previously filed EEO Complaint by issuing him a letter of reprimand (LOR)
on September 28, 2011, ostensibly for an incident that had occurred on June 9, 2011.

In the LOR and a memorandum for the record which S1 had prepared immediately following
the incident, S1 stated that when she attempted to instruct Complainant not to send unnecessary
emails, he became argumentative, shouted at her, and shook his finger at her in a manner that
was disrespectful and insubordinate. Complaint File (CF) 67, 69-70, 166, 169, 226, 253, 259,

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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263, 266. The altercation was witnessed by three other employees. CF 71-72, 170-71, 226,
231, 235, 238, 267-68. Complainant had received a letter of counseling from S1 and a letter
of guidance from a previous first-line supervisor for similar infractions. CF 73, 75, 172, 174,
271.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Although Complainant timely requested a hearing, the AJ assigned to the case granted the
Agency’s motion for summary judgment over his objections and issued a decision on August
13, 2014, without holding a hearing. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency retaliated against him as
alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving disciplinary actions
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his reprisal claim,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether S1 was motivated by unlawful considerations of his previous EEO complaint in
deciding to issue him the reprimand. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can do so by presenting documents
or sworn testimony showing that the reason articulated by S1 for reprimanding Complainant is
pretextual, i.e., not the real reason but rather a cover for reprisal. St. Mary’s Honor Society
v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can
include discriminatory statements or past personal treatment attributable to S1, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F.
v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why he believed that S1 had retaliated against him by issuing
the reprimand, Complainant responded that S1 picks on him all the time because he is Filipino.
CF 218-19. Complainant’s entire claim appears to rest on the notion that the acts complained
of, in and of themselves, are sufficient to establish motive. This is simply not true. The laws
the Commission enforces cannot prevent an employer from making decisions that its employees
disagree with unless those decisions are rooted in a statutorily proscribed motive. And on this
crucial issue, Complainant did not provide evidence of any of the indicators of pretext listed
above. He has not submitted any sworn statements from other witnesses or documents that
contradict the explanation provided by S1, or which call into question the veracity of S1 and
the three people who witnessed the altercation. We therefore find, as did the AJ, that no
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genuine issue of material fact exists with respect to S1’s motivation in issuing Complainant the
LOR on September 28, 2011.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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”
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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

February 9, 2016
Date