Miles N.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Oct 17, 2018

0120171495 (E.E.O.C. Oct. 17, 2018)

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

Miles N.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120171495

Agency No. HS-TSA-23838-2015

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 7, 2017
final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Transportation Security
Officer (TSO), E-Band, at O'Hare International Airport in Chicago, Illinois.

On April 22, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his
concerns were unsuccessful.

On August 11, 2015, Complainant filed the instant formal complaint. Complainant claimed that
he was subjected to harassment/a hostile work environment on based on race (Caucasian), color
(white), age (over 40), and in reprisal for prior EEO activity when:

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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1. in March 2014, management directed him to sign a letter of warning or he would be
denied a pay increase;

2. on November 21, 2014, management issued him a letter of counseling for having a
Starbucks drink and a Transportation Security Administration (TSA) bag at an airport
checkpoint;

3. on March 14, 2015, management issued him a letter of counseling for separating a
family at an airport checkpoint; and

4. on April 4, 2015, management issued him a letter of counseling for possessing a
negative and annual and sick leave balance.2

After the investigation of the formal complaint, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. The AJ, however, issued
a document entitled “Order of Dismissal of Hearing Request” dated December 14, 2016,
dismissing Complainant’s hearing request, finding that Complainant had not complied with the
AJ’s orders. Consequently, the Agency issued the instant final decision on February 7, 2017,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3

The instant appeal followed.

ANALYSIS AND FINDINGS

To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. Complainant must also prove that the conduct
was taken because of his protected bases – in this case, his color, age and prior protected activity.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself. Here, as discussed in detail below, the record does not support
a determination that Complainant was harassed due to discriminatory animus.

On January 11, 2011, Complainant was hired as a part-time Transportation Security Officer. He
became a full-time Transportation Security Officer on April 6, 2014. As a Transportation

2 The record does not contain a copy of the April 4, 2015 letter of counseling.

3 The record reflects that in its final decision, the Agency initially dismissed claims 1 and 2 for
untimely EEO Counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2). However, the Agency
nonetheless proceeded to address claims 1 – 4 on the merits, finding no discrimination.

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Security Officer, Complainant screens passengers and carry-on luggage to assure that no
prohibited items pass the checkpoint.

Regarding allegation 1, Complainant asserted that in March 2014, management directed him to
sign a letter of warning or he would be denied a pay increase. Complainant attested that he tried
to rescind his signature the next day but was not allowed to do so. He claimed that the letter of
warning was unjustified as his absences were due to an on-the-job injury. Complainant claimed
that he did get a pay increase after signing the letter of warning but it was discriminatory in that
the pay increase was combined with the letter of warning.

The Supervisory Transportation Security Officer (“Supervisor 1”) (African-American, dark
brown, year of birth 1970, prior protected activity) stated that he was in Complainant’s chain of
command briefly at the beginning of 2014, and was his first line supervisor. Supervisor 1 stated
that he issued Complainant a Review and Discussion letter, not a Letter of Leave Restriction,
because Complainant violated the leave procedures. Specifically, Supervisor 1 stated that
Complainant was calling out for unscheduled leave in conjunction with his Regular Days Off
(RDO) to extend his time off. Supervisor 1 stated that the subject letter was a corrective action,
not disciplinary action. Further, Supervisor 1 also stated that Complainant was not directed to
sign the letter, and that there was no pay increase associated with it. Supervisor 1 also stated that
he kept the letter until January 2016 and then got rid of it.4

Regarding allegation 2, Complainant alleged that on November 21, 2014, management issued
him a letter of counseling for having a Starbucks drink and a Transportation Security
Administration (TSA) bag at an airport checkpoint.

The Supervisory Transportation Security Officer (“Supervisor 2”) (Caucasian, white, year of
birth 1963, no prior protected activity) stated that she was Complainant’s supervisor from mid-
2014 until around December 2014. Supervisor 2 stated that on November 21, 2014, she issued
Complainant a letter of counseling for failure to follow instructions for having a Starbucks drink
and a TSA bag at the exit lane while on duty on November 19, 2014. Supervisor 2 stated that the
Deputy Federal Security Director observed Complainant having his Starbucks drink and TSA out
in the open and he informed a Transportation Security Manager. Further, Supervisor 2 stated that
the Transportation Security Manager told her that Complainant needed a write-up “because he
had been told before. [Transportation Security Manager] did not say how many times he had
been warned previously or when he received the warnings. I issued him a letter of counseling.”

Supervisor 2 stated that Complainant “was angry with me when I gave him the LOC. And, I
explained to him that he had his items out in the open. He asked me why other people were
allowed to have their items in the open. I told him I did not see it and I would have said
something to them, if I had seen them.”

4 The record reflects that Agency management was unable to locate this letter of warning. The
Agency assumed that the document was a letter of warning and combined a pay increase in it.
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The Transportation Security Manager (Hispanic, brown, year of birth 1979, no prior protected
activity) explained that it was the Agency’s practice that officers at the exit “are not to have any
liquids or personal belongings at exits. They are to have a radio and should be focused on the
exit to prevent any breaches; all officers are briefed on these practices.” With respect to
Complainant’s allegation that he was treated differently from other employees when he was
issued a letter of warning, the Transportation Security Manager stated “no one else to my
knowledge takes coffee or personal belongings to the exits. If that were to occur the officer
would also receive counseling.”

Regarding allegation 3, Complainant alleged that on March 14, 2015, management issued him a
letter of counseling for separating a family at an airport checkpoint.

The Transportation Security Manager stated that in August 2015 and from January 2015 to
March 2015, he was Complainant’s second level supervisor. The Transportation Security
Manager stated a protocol is in place to prevent families and parties traveling together from
being separated. The Transportation Security Manager explained when management discussed
the program with the Transportation Security Officers, “we instructed the officers to check with
a group to determine if they were with a family or a group. A supervisor or manager would
observe to ensure the protocol was being followed.”

The Transportation Security Manager stated that on March 13, 2015, another manager observed
Complainant separating a family, and at the same time he was slowing the security check process
by looking at boarding passes instead of using the tablet. The Transportation Security Manager
stated that he went to observe Complainant and noted he was separating families and groups “at
least three times. I then told him aside and reminded him to engage the passengers and ask if
they were traveling together to avoid separating families and people traveling as a group.
[Complainant] mentioned the tablet was malfunctioning. I checked the tablet but there was
nothing wrong with it.” Further, the Transportation Security Manager stated after he reminded
Complainant of the protocol regarding families and groups, he observed Complainant separate a
family “again and this family had little children. The parents were trying to have their children
come with him and Complainant said to the parents, ‘no, you have to go there.’ I intervened to
keep the family together.”

The Transportation Security Manager stated that on March 13, 2015, he met with Complainant to
discuss the issue of separating families. Subsequently, the Transportation Security Manager
issued Complainant a letter of counseling on March 14, 2015. Transportation Security Manager
stated that he had a witness and he explained to Complainant “the protocol and he still did not
understand. He explained that he did not like to engage passengers because he did not want them
in his personal space. He told us [he] did not want to get germs.”

Regarding claim 4, Complainant asserted that on April 4, 2015, management issued him a letter
of counseling for possessing a negative and annual and sick leave balance.

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The Transportation Security Manager stated that on April 4, 2015, he issued Complainant a letter
of counseling due to excessive absences. He explained that Complainant needed to have
sufficient time to cover any days off in the future, especially for unscheduled leave. Specifically,
the Transportation Security Manager stated that on April 3, 2015, he met with Complainant to
discuss his leave “because he only had 3 hours of sick leave and 10 hours of annual leave. There
is no set policy on how much officers are supposed to have. However, there is a policy that
states they are supposed to have a positive leave balance to cover the days they are taking.” The
Transportation Security Manager stated that he worked with Complainant for approximately one
hour showing him how to calculate his time and “he told me he did this because he wanted more
days off and he always thought he had more leave than he actually had.” Further, the
Transportation Security Manager noted that on March 20, 2015, another manager had a
discussion with Complainant about his excessive absences and his continued pattern of having
zero balance. The Transportation Security Manager stated at that time Complainant had 11
unscheduled absences which “is why I gave him a write-up instead of a warning.”

Complainant asserted that he was treated differently from other employees when he received the
letter of counseling. The Transportation Security Manager asserted, however, that in 2014 and
2015, he issued letters of counseling to several other Transportation Security Officers for having
a negative leave balance and unscheduled absences. The Transportation Security Manager
determined that it was part of his duty as a supervisor, “to address attendance issues, this is done
equally and in some cases assisting officers with schedule adjustments or giving them the
information to apply for accommodations helps the situation.”

After careful review of the record, we conclude that neither during the investigation, nor on
appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons by responsible management officials for the disputed actions were a pretext for unlawful
discrimination.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.5

5 Because we affirm the Agency’s finding of no discrimination for the reason stated herein, we
find it unnecessary to address alternative dismissal grounds concerning allegations 1 and 2 (i.e.
untimely EEO Counselor contact).

0120171495 6
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.
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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

October 17, 2018
Date