U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfredo S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021004573 Agency No. HS-TSA-00517-2021 DECISION 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 August 6, 2021, 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. 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 a Special Agent/Criminal Investigator,GS-1811-J Band, at the Agency’s Boston Satellite Office facility in Boston, Massachusetts. On February 4, 2021, Complainant filed an EEO complaint alleging harassment and discrimination based on age (YOB: 1955) and in reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 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. 2021004573 2 1. On November 10, 2020, the Deputy Special Agent in charge (DSAIC) accused Complainant of timecard fraud. 2. On December 9, 2020, the Special Agent in Charge (SAIC) delayed assigning Complainant a case. 3. Between November 19, 2020 to March 1, 2021, the DSAIC failed to provide Complainant with the technical asset he requested. 4. On February 18, 2021, the DSAIC and SAIC failed to recognize Complainant’s work performance. 5. On January 14, 2021, management denied Complainant’s request to participate in alternative dispute resolution (ADR).2 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. Complainant filed the instant appeal. 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 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”). Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, religion, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); “Enforcement Guidance on Harris v. Forklift Systems, Inc.”, EEOC Notice No. 915.002 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Svs., Inc., 510 U.S. 17, 21 (1993). 2 Claim 5 was dismissed for failure to state a claim. As Complainant does not dispute the dismissal on appeal it will not be addressed further herein. 2021004573 3 The Supreme Court has stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII’s purview.” Harris, 510 U.S. at 22. The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment. Id.; see also Toney E. v. U.S. Postal Serv., EEOC Appeal No. 2019005346 (Nov. 5, 2019). To prove a case of a hostile work environment, complainant must show: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment complained of was based on his protected status; (4) that the harassment affected a term, condition or privilege of employment; and (5) that the agency knew or should have known of the harassment. 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.,” supra. Assuming Complainant established a prima facie case of discrimination, we find that he failed to show by a preponderance of the evidence that the Agency’s asserted legitimate, nondiscriminatory reasons for its actions were pretext for discrimination based on age or retaliation. Regarding the alleged late case assignment, the Agency asserts that the case first required review from the Office of Inspector General (OIG), and the evidence shows that they were experiencing delays in OIG accepting or declining cases. However, the Agency asserts that on December 7, 2020, OIG referred the matter to Transportation Security Administration with approval to investigate and the case was assigned to Complainant on December 9, 2020, which was within the Agency’s required time limits. Regarding the alleged failure to provide Complainant with technical assets, the evidence shows that once Complainant submitted his request for an internet protocol covert camera on November 18, 2020, the DSAIC approved and submitted his request to the Technical Service Branch. Once it was approved by the Technical Service Branch the request was forwarded to an Investigative Analyst who then assigned a point of contact from the Philadelphia Field Office who was supposed to contact Complainant and provide him with the asset. By March 2021, Complainant was still not provided with the approved asset and in April 2021, the Technical Service Branch indicated that some requests had been delayed because the server was down. Complainant failed to show that the Agency’s asserted reasons are pretext for age discrimination or retaliation. He asserts the actions were motivated by retaliation because he has named SAIC and DSAIC in several other complaints. He asserts the Agency’s actions are related to his age because management is resentful of his seniority and the fact that he is a second-career federal law enforcement official with over 38 years of criminal investigative experience while neither of his immediate supervisors have been able to maintain a single job for more than a handful of years. 2021004573 4 Complainant has not identified any similarly situated employees that were treated more favorably, nor has he provided any evidence other than his own speculation that the Agency was motivated by age discrimination or retaliation. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). In addition, the Commission finds that none of the allegations, when taken as a whole, are sufficiently severe or pervasive to constitute a hostile work environment under the law. The Commission has long held that Title VII is not a civility code. Rather, the statute prohibits “only behavior so objectively offensive” as to alter conditions of employment. See Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 23. In this case, the behavior did not reach that level. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021004573 5 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004573 6 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 December 27, 2021 Date
