0120140019
03-25-2016
Michal J.,1 Complainant, v. Jeh Johnson, 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
Michal J.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120140019
Hearing No. 510-2012-00127X
Agency No. HS-TSA-18274-2010
DECISION
Complainant timely filed an appeal from the Agency's August 27, 2013, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented herein are (1) whether the Commission should remand this case to the Agency to investigate claims procedurally dismissed for untimely EEO Counselor contact; and (2) whether Complainant proved he was treated disparately and/or subjected to a hostile work environment based on race, national origin, sex, age, and/or reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Inspector (TSI), SV-1801-I, at the Orlando International Airport (MCO) in Florida. On February 15, 2011, he filed an EEO complaint alleging discrimination and harassment on the bases of race (Puerto Rican2), national origin (Hispanic), sex (male), age (over 40) and/or reprisal for prior protected EEO when:
1. On an unspecified date, Complainant was involuntarily transferred from a work location in favor of a less senior co-worker;
2. On an unspecified date, management implemented a local seniority policy which only applied to the department in which Complainant worked, resulting in several less-senior employees having higher and more favorable choice of schedule;
3. On unspecified dates, Complainant was denied assignment of significant tasks and/or training and professional developmental opportunities, including tour-of-duty assignments, in favor of less-senior employees;
4. On or about the end of March 2010 to the beginning of April 2010, Complainant was unfairly removed from significant tasks and/or special projects after he created or implemented them, only to have such tasks and projects assigned to less-senior employees;
5. On unspecified dates, several of Complainant's requests for lateral transfers into Cargo and Surface positions were denied while less-senior employees were given the transfer opportunities;
6. On unspecified dates, Complainant was subjected to intimidating remarks and comments implying that departmental headquarters was considering terminating the TSI position and transferring its responsibilities to another departmental agency or to screening personnel;
7. On unspecified dates, Complainant was given unrealistic deadlines for tasks assigned at the last minute notwithstanding that the individual assigning the task had known about the task for a reasonable period of time;
8. On or about March 9, 2010, the Assistant Federal Security Director (AFSD) instructed a Supervisory Transportation Security Inspector (STSI) to work on an activity unrelated to work while the STSI was informing Complainant that his previously-approved leave request had been cancelled by the AFSD;
9. During March 2010, the AFSD attempted to influence the completion of an internal sexual harassment investigation assigned to Complainant;
10. On or about September 2, 2010, Complainant was not considered for a STSI position;
11. In or around September 2010, Complainant applied for the STSI position as an internal candidate but was interviewed as an external candidate, resulting in the position being reposted; and
12. In December 2010, derogatory documentation was placed in Complainant's performance evaluation.
See Complainant's February 15, 2011, Formal Complaint. The complaint was accepted for investigation. See Report of Investigation (ROI) at 60-62, Letter of Acceptance. In the Letter of Acceptance, the Agency indicated that only allegations 10-12 were accepted as discrete acts of discrimination and would therefore be considered as disparate treatment claims as well as incidents of harassment. Id. at fn. 1. The Agency further indicated that allegations 4, 5, and 8 were also discrete acts of discrimination but were untimely raised before an EEO Counselor and therefore dismissed. Id. at fn. 2. A fair reading of the entire Letter of Acceptance alongside other documents in the ROI and the Agency's final decision, however, indicates that the dismissed allegations would be, and were, investigated and treated as background evidence for which Complainant would not be entitled to relief should he prevail on those matters.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but subsequently withdrew his request. See AJ's June 12, 2013, Order of Dismissal; see also Complainant's June 11, 2013, Notice of Withdrawal of Hearing Request on Issues Accepted for Hearing. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b); the Agency found that Complainant failed to prove discrimination or harassment as alleged. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the claims dismissed for untimely EEO Counselor contact should have been accepted as part of a pattern or practice of harassment. He further contends that the claims were not untimely, as he contacted the EEO Counselor by telephone in a timely manner and was told that certain documents would be forthcoming. Complainant explains that those documents never came, resulting in him contacting the EEO Counselor again to receive the previously promised documents. See Complainant's December 3, 2013, Appellate Brief.
For its part, the Agency contends that the untimely claims were properly dismissed and that, in any event, all of Complainant's allegations, even those untimely raised, were investigated. See Agency's January 27, 2014, Opposition to Complainant's Appeal. The Agency further contends that its ultimate finding, that Complainant failed to prove discrimination or harassment as alleged, should be affirmed. Id.
STANDARD OF REVIEW
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 1614, at Chap. 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").
ANALYSIS AND FINDINGS
Remand of Procedural Dismissal for Untimely EEO Counselor Contact
Commission regulations provide that complaints of discrimination should be brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
The regulations also provide that these limits will be extended only when the individual shows that the individual was not notified of the time limits and was not otherwise aware of them, that the individual did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence the individual was prevented by circumstances beyond the individual's control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. See EEOC Regulation 29 C.F.R. � 1614.604(c).
As noted previously, some of Complainant's allegations were dismissed because, according to the Agency, they were brought to the attention of an EEO Counselor in an untimely manner. We need not determine whether the dismissed allegations were properly dismissed because we find that the record is sufficiently developed such that we can make a finding on the merits of those matters.3 Therefore, we decline to remand the procedurally dismissed allegations to the Agency for further investigation.
Disparate Treatment
In the absence of direct evidence of discrimination, as is the case here, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reasons proffered by the Agency were pretexts for discrimination. Id. at 256. We presume, without so finding, that Complainant has established his prima facie cases of race, national origin, sex, age, and/or reprisal.
We now consider whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. With respect to claim 1, Complainant being involuntarily transferred from a work location, management stated that it made the decision to annually rotate a TSI from MCO to a "spoke" airport, in this case, Orlando Sanford International Airport (SFB), to ensure new ideas and new input could be exchanged between the necessary parties at both airports. Management further stated that this change was made because most TSIs had worked with the same regulated parties for over five years, and there were times when relationships got too close, which could result in things getting overlooked. Complainant did not introduce evidence contradicting this explanation.
With respect to claim 2, Complainant claimed that management implemented a local seniority policy, which allegedly applied only to the department in which Complainant worked and which resulted in several less-senior employees having higher and more favorable choices of schedule at Complainant's expense. Management stated that the bidding order for the new implementation of shifts was based on time with the Agency in the TSI position, and that changes were made to align the new MCO process with the process used by the rest of the Agency. Management clarified that the process always existed but what precipitated the change locally was the implementation of shifts and a move from a Monday through Friday schedule. There is no information in the evidentiary record that casts doubt on this explanation. To the contrary, Complainant admitted he was originally not the intended party of the policy change at issue. He stated that "[o]riginally, I was not the intended target of [the] ... [new policy's implementation] ... it was other TSIs." See ROI at 94.
Regarding claim 3, in which Complainant claimed he was being denied assignment of significant tasks and/or training and professional development opportunities including tour-of-duty assignments in favor of less-senior employees, management offered these legitimate, nondiscriminatory reasons, as many of the opportunities identified by Complainant were "one-time occurrences." Complainant was not allowed to work a G-8 Summit because that event had not occurred in the United States since Complainant's last assignment. He was not allowed to work the Super Bowl because that event had not been held locally since Complainant's last assignment. He was not allowed to work the Republican National Convention because that event occurred in 2008, and had not been held locally (or otherwise) since. He had not participated in airport strikes because those exercises were now being scheduled without nominations from the field. Complainant was removed from the International Assessment/Foreign Assessments Course, along with many other TSIs at MCO and across the country, by a decision made at headquarters, not by MCO management. Complainant had not participated in Physical Security Training because such training had been postponed due to the Federal Law Enforcement Training Center not having enough personnel for the class, although the Agency planned to offer such training in the future. There is no information in the ROI showing these statements to be false.
As to claim 4, management stated that Complainant was removed from the Inspector Shadowing Program (ISP) because several Supervisory STSIs and TSIs expressed concern that the program was poorly coordinated and structured. Its control was transferred from Complainant's direct supervisor to another supervisor to whom Complainant did not report, which ended his involvement with the program. Complainant did not produce evidence sufficient to cast doubt on these.
Regarding Complainant's requests for lateral transfers into Cargo and Surface positions, the Agency explained that, as to the Cargo position, Complainant requested the transfer after the original and extended deadlines for doing so had expired. Regarding the Surface transfer, management stated that it attempted to get Complainant's request approved but departmental headquarters declined the approval because Complainant lacked the one-year Surface experience required for the job. There is no evidence in the ROI which refutes this.
In claim 6, Complainant alleged that he was subjected to intimidating remarks and comments which implied that departmental headquarters was considering terminating the TSI position and transferring its responsibilities to another departmental agency or to screening personnel. Management stated that "TSI evolution" was a new movement initiated by headquarters, based upon its belief that TSIs needed to be more integrated with other parts of the Agency and become more security-focused. Management further stated that it advised a group of employees that, at an earlier point in time, the TSA Administrator had considered merging TSI and Transportation Security Marshal (TSM) positions, as they were the same job series and could do the same work. Management stated that it informed the group that it needed to show senior leaders their value and convince those leaders that TSIs were the only ones in the TSA who knew all the requirements of security at airports, from the fence line to the checkpoint. Management concluded by stating that this information was shared to "inspire" TSIs to accept TSI evolution.
Regarding claim 7, Complainant's allegation that he was given unreasonable deadlines to complete tasks, management acknowledged that time difficulties arose with various STSIs when they did not properly delegate, follow up on, and account for the work assignments in their divisions. The Agency stated that the workload had increased and more expectations were placed on the TSIs, which several Supervisory TSIs did not handle well, and which resulted in a lack of accountability with the TSIs. Some TSIs requested waivers of deadlines, but the Agency stated that Complainant had not requested a waiver, and had not shown that the deadlines were due to his membership in a protected class.
In claim 8, Complainant alleged that the AFSD instructed an STSI to go to a non-work related activity so that the STSI could inform Complainant that his previously-approved leave had been cancelled. The Agency explained that during a TSA-sponsored softball game, which Complainant and other TSIs attended while on annual leave, the AFSD instructed the STSI to tell Complainant to report back to work because he had missed two deadlines regarding a sexual harassment investigation Complainant was conducting. Management stated that when Complainant refused to return to work, the AFSD agreed to let Complainant remain at the game. The record does not refute this.
Regarding claim 9, Complainant's allegation that the AFSD attempted to influence the completion of the sexual harassment investigation discussed in the previous allegation, management stated that Complainant was having difficulties complying with specific due dates and that another AFSD was asked to help Complainant complete the inquiry. The Agency found that Complainant had not shown how this was connected to his claimed protected bases.
Regarding the allegations surrounding Complainant not being selected for a STSI position, claims 10 and 11, management stated that, after reviewing the applications, it determined that none of the TSIs who applied were qualified, and so the Agency decided to repost the vacancy. Concerning Complainant specifically, management stated that Complainant lacked supervisory experience and performed poorly during the interview. Management acknowledged that Complainant was listed on the external list of qualified candidates and that Complainant was advised to ask the contractor who reviewed the applications to ask why, but Complainant never did because he was indeed interviewed for the position. Complainant did not supplement the ROI with evidence indicating otherwise.
Finally, with respect to Complainant's allegation that derogatory documentation was placed in his performance evaluation, the Agency noted that Complainant had demonstrated unacceptable performance on two of the performance goals for that fiscal year. The Agency found that Complainant had received a Letter of Counseling for Failure to Follow Directions on March 19, 2010; a Letter of Reprimand for Insubordination, Failure to Follow Directions, and Unprofessional Conduct on April 29, 2010; had significant gaps in his work assignments and his inputs into the TSI official reporting system; and had low work production and performance. This information is documented in the evidentiary file. See ROI at 225-229.
Complainant must now present evidence showing that the Agency's stated reasons are pretexts based on race, national origin, sex, age, and/or reprisal. In order to meet this burden of proof, Complainant presented no evidence, other than his own beliefs, to demonstrate that his protected classes were factors in the actions he alleges to be discriminatory. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has not established that the Agency's stated reasons were pretext for discrimination on his protected bases.
Hostile Work Environment
Further, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant has not established that any of the actions taken by the Agency as set forth in the underlying formal complaint were motivated by discriminatory animus because of Complainant's membership in any protected class. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find it appropriate not to remand this case for further processing because the incidents of discrimination surrounding the procedurally-dismissed allegations were sufficiently developed to allow us to make merit-based determinations on those matters. We further find that Complainant did not establish his claims of discrimination and harassment as alleged. Accordingly, the Agency's final order is hereby AFFIRMED.
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" 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 25, 2016
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 Commission considers the designation "Puerto Rican," like the designation "Hispanic," to denote a national origin rather than a race.
3 That is to say, assuming that these matters should not have been dismissed, the Agency's investigation of these incidents and our ruling on the merits of these issues render any potential error on the part of the Agency resulting from its dismissals harmless to Complainant.
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