Freddy K.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 15, 2019

0120181568 (E.E.O.C. Aug. 15, 2019)

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

Freddy K.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120181568

Agency No. HSTSA019942017

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 6, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s
final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Expert Behavior
Detection Officer (EBDO), SV-1801, G-Band, at the Agency’s Chicago O'Hare International
Airport (ORD) facility in Chicago, Illinois. On May 31, 2017, Complainant retired from the
Agency. His resignation statement in part alleged he was forced to retire early due to the
harassment by Agency management as detailed in his EEO complaint HS-TSA-00035-2017,
which is also the subject of EEOC Appeal No. 0120181653 (June 11, 2019).

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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Prior EEO Activities Related to the Complaint on Appeal

Prior to the events giving rise to this complaint, Complainant had engaged in the EEO process
regarding separate complaints of alleged discrimination by the Agency. In his previous
complaint before this Commission, Complainant alleged that since this Commission’s finding in
his favor in EEOC Appeal No. 0120132110 (March 18, 2016) that Agency management officials
have engaged in harassment and retaliation towards him. EEOC Appeal No. 0120181653 (June
11, 2019). In EEOC Appeal No. 0120181653, Complainant alleged the Agency subjected him to
a hostile work environment based on reprisal (prior EEO activity under EEOC Appeal No.
0120132110) when:

1. On numerous unspecified dates since March of 2016, and specifically on or about
September 25, 2016, and October 9, 2016, management denied his request for sick leave
for care of a family member with a serious health condition.
2. On or about October 1, 2016, management placed him in an absent without Leave
(AWOL) status for using sick leave for care of a family member with a serious health
condition.
3. On or about October 15, 2016, management denied his jury duty leave request and placed
him in an AWOL status.
4. On or about October of 2016, management lowered his Transportation Officer
Performance System (TOPS) score rating.

This Commission affirmed the Agency’s finding that Complainant failed to demonstrate by a
preponderance of the evidence that discrimination occurred, or that the Agency subjected him to
a hostile work environment and harassment. Id.

The Complaint on Appeal

On September 5, 2017, Complainant filed an EEO complaint alleging he was subjected to
harassment on the basis of reprisal for prior protected EEO activity when on May 31, 2017, he
was forced to retire.

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). In accordance with Complainant’s request,
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. The
instant appeal followed.

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

Complainant alleges the Agency constructively discharged him from his position. In order to
prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000). Moreover, to establish a prima facie case of reprisal Complainant
must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air
Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

Here, assuming arguendo Complainant established a prima facie case of discrimination, we find
that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally,
Complainant failed to show that these reasons were pretextual. Specifically, Complainant alleged
Responsible Management Officials (RMOs) told him he was continually under surveillance for
potential infractions as well as constantly questioning his integrity and work ethic. Contrary to
Complainant’s allegations, RMOs denied this allegation. One RMO specifically stated, which
was supported by the statements of Complainant’s three coworkers, that all employees were
informed that the cameras within the facility were used by the RMOs as managers and all
employees were surveyed as a management technique, not just Complainant. Three coworkers
interviewed stated they themselves had been addressed by RMOs about their own actions based
on a review of camera footage. Additionally, to support his claim of constructive discharge,
Complainant’s alleged that RMOs stated to his coworkers and himself that he was not a real G-
Band EBDO, and should not be treated as such. However, this claim was not supported by two of
his coworkers or RMOs. On the contrary, one of his coworkers (Coworker One) stated
Complainant himself had made the statement that he was not a real G Band. Coworker One did
state that Complainant was never given G Band duties and not considered G Band on the
schedule. Coworker One did not state when or any other specifics regarding this claim. Based on
the weight of all evidence presented, we do not find this claim establishes by a preponderance of
the evidence that Complainant was subjected to discrimination based on his protected status.

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In this case, Complainant has also failed to provide any evidence that similarly situated
employees outside of his protected class were treated differently from him. We find that
Complainant failed to establish that the actions taken by the Agency were based on
discriminatory animus. Because we find that Complainant failed to show by a preponderance of
the evidence that the Agency’s actions were motivated by discrimination, we also find that
Complainant failed to show he was subjected to a discriminatory hostile work environment.

CONCLUSION

Accordingly, this Commission AFFIRMS the Agency’s final decision finding no discrimination
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
(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

August 15, 2019
Date