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

Equal Employment Opportunity Commission

Apr 8, 2016

0520140557 (E.E.O.C. Apr. 8, 2016)

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

Horace L.,1
Complainant,

v.

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

Request No. 0520140557

Appeal No. 0120121501

Hearing No. 551-2009-00188X

Agency No. HS-09-TSA-002944

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal No. 0120121501
(August 8, 2014). EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. § 1614.405(c).

In his underlying complaint, Complainant alleged that he was subjected to unlawful harassment
based on his race, national origin, and prior protected EEO activity when: 1. On June 15,
2005, the Special Agent in Charge (SAC) directed Complainant to wear a neck-tie while on
light-duty status; 2. On October 25, 2006, the Assistant Special Agent in Charge (ASAC) made
inappropriate comments regarding Complainant; 3. On July 1, 2007, the SAC did not allow
Complainant to testify before elected officials of Washington State; 4. On August 10, 2007, the
SAC did not solicit input from Complainant's first-line supervisor regarding a J-Band
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.

0520140557

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promotion; 5. In November 2007, Complainant received documents from a Freedom of
Information Act (FOIA) request that were unusable because of heavy redactions; 6. On March
1, 2008, the SAC cancelled Complainant's sick leave which had been previously approved; 7.
On March 2, 2008, Complainant was forced to drive to work while taking medication that
made him drowsy; 8. On April 25, 2008, the ASAC and the Administrative Officer (AO)
directed Complainant to use his personal insurance to cover an alleged work-related medical
claim; 9. On May 1, 2008, when Complainant reported for light-duty, the SAC informed
Complainant that he should have taken sick leave instead of reporting for work; 10. On July
10, 2008, Complainant was informed by a co-worker that the SAC commented that
Complainant “is a per diem whore,” and “must have a squeeze on the east coast;” 11. On July
10, 2008, Complainant submitted a FOIA request regarding his J-Band evaluation, however,
upon receipt, Complainant discovered that it was redacted to such an extent that was unusable;
12. On October 16, 2008, the Assistant to the Special Agent in Charge told Complainant that
he did not want him to be the team leader on an international mission; 13. On May 5, 2009,
the SAC challenged Complainant about his work duties while he was in the office on a Non-
Mission Status day; and 14. On August 19, 2008, the ASAC yelled at Complainant about his
Office of Workers’ Compensation Programs (OWCP) claim, and the AO told him that the
rules and laws don't matter because OWCP will do whatever it needs to.

On April 22, 2009, the Agency issued a letter of Partial Acceptance/Partial Dismissal
accepting Complainant's claims 1-4, 7, 9, and 10 for further processing. The Agency
dismissed claims 6 and 8 for untimely EEO Counselor contact, and claims 5 and 11 for failure
to state a claim. The Agency accepted claims 12, 13, and 14 for further processing. At the
conclusion of the investigation, the Agency provided Complainant with a copy of the Report of
Investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ found that, after viewing the evidence in a light most favorable to Complainant, a
decision without a hearing was appropriate as there were no genuine issues of material fact in
dispute. On September 27, 2011, the AJ issued a decision in the Agency's favor. When the
Agency failed to issue a final order within 40 days of receipt of the AJ's decision, the AJ’s
decision became the Agency's final order.

On appeal, Complainant argued that the AJ erred in issuing a decision without a hearing as the
investigation was deficient and incomplete and the investigator failed to interview identified
witnesses and collect pertinent documentation. Complainant further reiterated his contention
that he was subjected to a hostile work environment. The Commission concluded, however,
that the investigation was adequately developed and that the AJ’s issuance of a decision without
a hearing was appropriate as there were no issues of material fact in dispute. Further, we
concurred with the AJ’s finding that viewing the evidence in a light most favorable to
Complainant, he failed to show that the incidents alleged were sufficiently severe or pervasive
to rise to the level of actionable harassment, or that they were based on his race, national
origin, or prior EEO activity.

0520140557

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In his request for reconsideration, Complainant largely reiterates the arguments made, and
fully considered, on appeal. Accordingly, after reviewing the previous decision and the entire
record, the Commission finds that the request fails to meet the criteria of 29 C.F.R.
§1614.405(c), and it is the decision of the Commission to deny the request. The decision in
EEOC Appeal No. 0120121501 remains the Commission's decision. There is no further right
of administrative appeal on the decision of the Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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

April 8, 2016
Date