0120162744
03-15-2018
Michael M.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michael M.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120162744
Hearing No. 440-2013-00042X
Agency No. HSTSA215742012
DECISION
On August 27, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 22, 2016 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
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer at Chicago O'Hare International Airport in Chicago, Illinois. On March 8, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Asian), color (yellow/brown), and reprisal for prior protected EEO activity (2007 EEO complaint, closed December 2008) when:
1. on March 18, 2011, management issued Complainant a Letter of Counseling (LOC),
2. on July 7, 2011, management issued Complainant a LOC,
3. on July 28, 2011, management denied Complainant's request to have his Performance Accountability and Standard System (PASS) rater officially changed,
4. on September 24, 2011, management issued Complainant an unfairly low PASS score,
5. on November 4, 2011, Complainant discovered that the March 18 LOC was still in his file although he was told it had been removed,
6. on November 4, 2011, management issued Complainant a Letter of Guidance and Direction (LOGD),
7. on November 19, 2011, management asked Complainant to come into work although it had approved leave for him for the day, and required him to take alcohol and drug tests,
8. on November 25, 2011, Complainant's supervisor refused to answer Complainant's questions regarding why the March 18 LOC remained in his file,
9. on February 3, 2012 and February 6, 2012, upper management denied Complainant's request to have his low PASS score changed, and
10. on February 8, 2012, management issued Complainant a Notice of Proposed 14-day suspension, which he began serving on March 18, 2012.2
Investigation
Agency Responses
A Deputy Assistant Federal Security Director (S1) (Caucasian, Italian-American, olive, prior EEO activity) stated that he is aware of Complainant's prior EEO activity. S1 stated that, in March 2011, management issued Complainant a LOC because he made irresponsible statements during a shift in-briefing (with subordinate staff) about another employee's arrest. S1 asked Complainant's PASS Supervisor (S2) to present the LOC to Complainant. S1 told management that disciplinary action was warranted and they conferred with Human Resources to determine what type of action was appropriate. S1 acknowledged that there were rumors of the employee's arrest but no one else presented the information in an official meeting. Also, an article about the arrested employee was posted in Complainant's zone.
S1 stated that he told Complainant he would remove the March LOC from his file if Complainant told him that he understood why his comments were inappropriate. S1 stated that S2 felt strongly that the LOC should remain, and convinced him that it should also. S1 stated that he did not follow-up, but someone should have told Complainant the LOC would remain in his file. S1 stated that Complainant frequently blamed agency actions on his national origin. S1 stated that he, Complainant, and a Transportation Security Manager (S3) met and he told S3 not to answer Complainant's questions because Complainant was asking about employees who were not under his supervision. The result of the meeting was that the LOC would remain in Complainant's file.
S2 (Caucasian, Irish/German/Polish/American, white, prior EEO activity) stated that S1 instructed her to issue the March LOC to Complainant. S2 stated that Complainant was issued the LOC for "conduct unbecoming of a supervisor" for talking about a coworker's arrest and posting a newspaper article about the arrest at the worksite. S2 stated that she issued Complainant a second LOC in July 2011 for "failure to follow directions." S2 stated that she issued the July LOC to Complainant because she instructed managers to submit time and attendance records (T&As) no later than the first Wednesday of the pay period and Complainant failed to do so on three occasions. S2 stated that others failed to submit T&As timely and she issued them LOCs also.
S2 stated that she was Complainant's PASS rater because she worked with him the most. S2 stated that Complainant did not have a problem with her serving as his PASS rater until she gave him his mid-year competency scores. S2 stated that Complainant became angry and insulting after given his ratings. S2 stated, in accessing Complainant's performance, she considered discussions with Complainant, written communications from Complainant, and Complainant's failure to own his mistakes or address conflict in his zone. S2 stated that Complainant wanted another Manager (S4) to serve as his PASS rater, but she had discussed Complainant's performance with S4 before and knew he had a similar or stricter stance on Complainant's ratings. S2 acknowledged that she did not think the March LOC should be removed from Complainant's file.
S3 (Black, American, black, no prior EEO activity) stated that he issued Complainant a LOGD, and it is a form of corrective action that puts an employee on notice to what a policy is. S3 stated that it is lower than a LOC and is the first step in the corrective action process. S3 stated that he issued the LOGD because Complainant continued to inquire about a female officer (C1) who was no longer under his supervision, although specifically instructed not to do so.3
S2 stated that Complainant did not have approved leave for November 19 because of operational needs and staffing requirements. She stated that Complainant submitted his leave request and did not follow through to see if it was approved until the day the leave was needed. S2 stated that Complainant had his regular days off November 14 to November 16, was on preapproved leave on November 17, and then called in for absence on November 18. She stated Administration told Complainant to contact his manager regarding his leave request, but Complainant failed to do so and did not show up for his shift. S2 noted that Complainant's leave was not on the leave calendar or the wait list for November 19. S2 added, the same day, Human Resources contacted her stating that Complainant was randomly selected for a urinalysis. S2 stated that S3 contacted Complainant about the urinalysis and he agreed to come in for the test that day.
A Deputy Assistant Federal Security Director (S5) (African-American, African, dark, prior EEO activity) stated that he upheld Complainant's PASS rating. S5 stated that he was the second step in the grievance process about the score. S5 stated that his decision was based on the record and management concerns with Complainant's interpersonal skills.
An Assistant Federal Security Director (S6) (Caucasian, Hungarian/Russian, white, prior EEO activity) stated that he met with Complainant to listen to his concerns about his PASS score, but he could not review the score because Complainant exhausted all means of appeal. Also, separately, S6 stated that he decided to suspend Complainant for "Failure to Follow Directions," "Inappropriate Comments," and "Inappropriate Use of a Federal Government Email System" as outlined in a March 16, 2012 suspension notice. The suspension related to Complainant's inquiries about his former employee, C1, and the resulting LOGD. S6 added that Human Resources and Legal had to review the supporting documentation to ensure the disciplinary action was appropriate. S6 stated that management issued Complainant a proposal to suspend first, to which Complainant responded. S6 stated that he issued the discipline to "avoid any future repetitive behavior of [the same] nature."
Investigative Record
The record contains a Written Counseling, dated July 7, 2011, in which S2 reminded Complainant that managers had to submit their Time and Attendance Reports no later than the first Wednesday of the pay period. She stated that Complainant was informed via email on May 27, 2011 and otherwise on June 22, 2011.
Also, the record contains a LOGD, dated November 4, 2011, wherein S3 reminded Complainant that he must cease all inquiries and involvement regarding C1. In the LOGD, S3 stated he learned that, on October 24, 2011, Complainant inquired about C1's timeliness, although he informed Complainant that she was no longer under his supervision effective September 22, 2011.
The record also contains a Notice of 14 Calendar Day Suspension, dated March 16, 2012, citing "Failure to Follow Directions," "Inappropriate Comments," "Inappropriate Use of a Federal Government Email System." The Notice refers to Complainant's inquiries about and treatment of C1.
Post-Investigation
Following the EEO 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) or an immediate final agency decision. Complainant requested the former. The assigned AJ found that the instant matter did not warrant a hearing.
In a decision, dated June 15, 2016, the assigned AJ found Complainant failed to show the Agency's actions were based on impermissible motives. The AJ stated, "The evidence clearly demonstrates that Complainant is guided by a very strict ethical code, which causes him to react and say things that are at a minimum insensitive and at the most inappropriate for a supervisor." On July 22, 2016, the Agency 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 from Complainant followed.
ANALYSIS AND FINDINGS
An AJ may issue a decision without a hearing, summary judgment, when he or she finds that there are no genuine issues of material fact. 29 C.F.R. � 1614.109(g); Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. Anderson, 477 U.S. at 248. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Anderson, 477 U.S. at 255. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Hostile Work Environment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
The Agency stated that it issued the March 18 LOC because Complainant made inappropriate statements, during an official meeting with subordinate staff, about another employee's arrest. The Agency also stated that it found an article about the arrested employee's arrest posted in Complainant's zone. Management informed Complainant that it would remove the March LOC from his file, but later determined that it was appropriate for the LOC to remain in his file. The Agency acknowledged that it should have informed Complainant that the LOC would remain. The Agency stated that it issued Complainant a second LOC on July 7, 2011 for "failure to follow directions." The Agency stated that it issued Complainant the July 7 LOC because he failed to submit Time and Attendance Reports in a timely manner although he was told to do so several times. The Agency stated that the Manager who spent the most time with Complainant was his PASS rater and her rating was based on Complainant's performance, discussions, and tendency to ignore his own mistakes or address conflict in his area.
The Agency stated that it issued Complainant a LOGD as a first step in corrective action for Complainant ignoring instructions to stop inquiring about an officer formerly assigned to his area. The Agency stated that Complainant had been on regular days off and other leave prior to November 19, but he did not have an approved leave request for November 19. The Agency stated that the November 19 request was denied due to operational needs, and Complainant failed to confirm approval prior to the day the leave was needed. The Agency stated that Human Resources requested a urinalysis from Complainant on November 19 and he came in and provided it.
The Agency stated that it upheld Complainant's PASS rating based on the record and some concerns about Complainant's interpersonal skills. The Agency stated that Complainant exhausted the grievance appeals process for his PASS score. The Agency stated that it decided to suspend Complainant for "Failure to Follow Directions," "Inappropriate Comments," and "Inappropriate Use of a Federal Government Email System" for continued inquiries about his former employee. The Agency stated that Human Resources and Legal reviewed the disciplinary action for appropriateness.
Here, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on his race, national origin, color, or reprisal for prior EEO activity. We conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency's actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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.
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
March 15, 2018
__________________
Date
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.
2 The Agency found (1) through (4) are discrete acts (independently actionable) that Complainant failed to initiate EEO contact for in a timely manner, so they serve as only background evidence for his harassment claim.
3 On September 19, 2011, C1 submitted a letter alleging disparate treatment and harassment by Complainant. The record reveals that she later initiated EEO contact regarding her allegations.
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