U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allan L.,1 Complainant, v. Peter T. Gaynor, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020000425 Hearing No. 430-2018-00139X Agency No. HS-TSA-00179-2017 DECISION On October 21, 2019, 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 September 17, 2019 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 At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO), SV-1802-E-Band, at the Agency’s Nantucket Memorial Airport in Nantucket, Massachusetts. On March 22, 2017, Complainant filed an EEO complaint (and subsequently amended) alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male) and in reprisal for prior protected 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. 2020000425 2 1. on or about October 17, 2016, Complainant was directed to change the rating of a subordinate; 2. on or about October 17, 2016, Complainant was told that if he did not “self- demote,” management would find a way to demote him; 3. on or about October 31, 2016, Complainant’s supervisory duties were removed, and his salary was reduced; 4. on January 25, 2017, Complainant was issued a Letter of Reprimand (LOR); 5. on November 22, 2016, Complainant was subjected to a search of his personal belongings after they were cleared at a checkpoint; 6. on February 19, 2017, Complainant was decertified on X-ray and he was recorded, without his knowledge or consent; 7. on March 19, 2017, Complainant was falsely accused of “coaching” a passenger; 8. Complainant’s efforts to identify violations of standard operating procedures and screening procedures were ignored2; 9. on or about April 2, 2017, Complainant was told to re-scan a passenger after his gloves alarmed, and was directed to clock out early; 10. on or about April 16, 2017, Complainant was directed to clock out early; and 11. on or about May 30, 2017, Complainant was charged Absent Without Leave (AWOL). The record reveals that Complainant was promoted to Supervisory Transportation Security Officer (STSO) for a one-year probationary period in January 2016. In Claim (1), while Complainant was a STSO, Complainant asserted that he completed an annual review for one of his subordinates (TSO 1), but his supervisor (S1) changed the review to give TSO 1 a higher score. Complainant contends that S1 was trying to discredit him in retaliation for engaging in protected EEO activity. S1 explained that, as reviewing official, he is permitted to disapprove or modify a TSO’s original rating, and that he disagreed with Complainant’s rating for TSO 1. Because Complainant was on vacation, he directed another STSO (STSO 2) to modify TSO 1’s rating. In Claims (2) and (3), on October 17, 2016, Complainant claimed that S1 informed Complainant that he had decided Complainant would not be a STSO anymore. If Complainant did not self- demote, he asserted, S1 said he would find a way to make Complainant self-demote. On October 31, 2016, S1 demoted Complainant from STSO to TSO. As a result, Complainant’s salary decreased to the TSO level. Complainant believed that he was demoted in retaliation for engaging in EEO activity. S1 explained that he privately notified Complainant that he was leaning toward demoting Complainant because he was not demonstrating leadership skills and had handled multiple situations unsatisfactorily. S1 received complaints from other officers and, along with other STSOs, attempted to coach Complainant with little success. S1 added that that if Complainant decided to self-demote, “that would be best because a voluntary demotion does not count against” his performance rating and future promotions. 2 Complainant explained that Claims (8) and (10) occurred on April 16, 2017 2020000425 3 The Assistant Federal Security Director (AFSD) concurred with S1’s assessment. AFSD explained that Complainant was in his one-year promotion probationary period. The record contains Complainant’s demotion notice, which details several counseling sessions that did not result in improved performance. The notice also cites Agency’s policy regarding probationary periods. The LOR at issue in Claim (4) resulted from an incident taking place on November 22, 2016, which Complainant raised in Claim (5). According to Complainant, the LOR resulted after he accidentally brought a knife sharpener through the security checkpoint. The TSOs on duty waved him through despite the presence of the knife sharpener, but Complainant later noticed the presence of the sharpener. He removed the sharpener from his bag and placed it in the kitchen break room. An hour later, another TSO asked Complainant to bring his bag back to the checkpoint, and the TSOs on duty searched his bag again, but said an item was missing. The TSOs pointed to the x- ray image from when Complainant passed through, and he identified the sharpener as the missing item. Complainant contended that he was discriminated against because of his sex because a female TSO was allowed to pass through the security checkpoint despite having a 12-ounce liquid bottle. S1 explained that a Transportation Security Inspector called and notified him that Complainant brought a “utility knife/box cutter” through the security checkpoint. According to S1, Complainant said that it was a glass cutter, but “either way there is a blade.” As a result, S1 issued Complainant a LOR for bringing a prohibited item through the security checkpoint. The text of the LOR confirms this explanation. S1 noted that employees are allowed to bring in water bottles. In Claim (6), Complainant asserted that, on February 19, 2016, he met with STSO 2 and another individual, who said he was being de-certified on the x-ray machine. During this conversation, Complainant noticed that a cell phone was on the table. STSO 2 eventually removed the cell phone. Complainant speculated that the phone was being used to record the conversation. Complainant appealed the matter to S1, who overruled STSO 2’s decision to de-certify Complainant. S1 explained that Complainant was de-certified because his Threat Image Projection (TIP) score was unacceptable two months in a row. Standard practice requires a TSO to be notified that his or her TIP score is unacceptable, and if it remains unacceptable two months in a row, the TSO is de- certified. After Complainant argued that he never received notice in either month, STSO 2 and S1 rescinded the de-certification and agreed that the conversation would serve as his one-month notice. If Complainant’s TSP score was unsatisfactory the following month, then he would be de- certified. He did not fail the following month and was not de-certified. On March 19, 2017, Claim (7) occurred during a bag check when Complainant discovered an oversized gel and asked the passenger the purpose of the gel. The passenger replied that it was for his foot. Complainant asserted he presumed the gel was for medical purposes and allowed it. Complainant informed STSO 2 that the gel was for medical purposes, but STSO 2 accused Complainant of coaching the passenger. 2020000425 4 The passenger then threw out the gel. Complainant claimed, without further elaboration, that STSO 2’s accusation was in retaliation for his prior EEO activity. STSO 2 explained that she overheard Complainant asking a passenger if the gel was necessary for medical purposes. STSO 2 noted that employees are not allowed to coach passengers. Rather, passengers “need to produce that information on their own . . . [and] this passenger did not independently state the item was for medical purposes.” In Claims (8) and (10), Complainant asserted that the incident took place on April 16, 2017. On that day, Complainant was assigned to the x-ray machine when a young girl and her parents passed through. STSO 2 directed the young girl to a private screening room. The mother said that the daughter was only 12 years old. STSO 2 then allowed the daughter to leave the screening room. Complainant complained that STSO 2 should never have directed the daughter into the room alone. Later that day, another TSO “verbally passed the ‘advisement’ that [Complainant] should clock out three hours before my shift ended.” Complainant blamed STSO 2 for causing the Agency to direct him to leave early. STSO 2 did not recall this incident but noted that officers occasionally leave early due to a schedule adjustment or time off. Another STSO present for the incident contradicted Complainant’s statement of the events. Rather, the daughter was older than 12, and the mother chose to remain with their luggage. The TSO involved in screening the daughter testified that she asked the daughter if she wanted a parent in the room. The daughter declined and STSO told this TSO that she had already asked the parents if they wanted to be in the room, but both parents declined. Complainant explained, regarding Claim (9), that on April 2, 2017, a male passenger set off the alarms during screening, which indicated an anomaly. During the pat down, a TSO told Complainant to stop the pat down because the TSO had accidentally scanned the passenger using the “female” setting. When the TSO adjusted the setting to scan a male passenger, the machine did not alarm, and the passenger went through. Later that day, the TSO told Complainant that STSO 2 wanted Complainant to clock out early but did not give a reason. Complainant noted that he still worked a full 40 hours that week and was paid normally. In Claim (11), Complainant asserted that STSO 2 was in charge of the schedule but was not very consistent. STSO 2 had told Complainant that she was changing the schedule, but Complainant’s schedule would remain the same. STSO 2 then called Complainant on his off day asking why he was not at work. The next day, STSO 2 told Complainant that he was late to work by one hour and charged him AWOL for that hour. STSO 2 explained that the Nantucket airport was small, which resulted in frequent adjustments to the schedule. STSO 2 emailed every officer the updated schedule in two separate emails and posted the schedule. Complainant still did not arrive for work at his scheduled time, so STSO 2 charged Complainant AWOL. S1 added that Complainant had perfect attendance otherwise, so he permitted Complainant to use leave to cover the hours and removed the AWOL charge. 2020000425 5 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for summary judgment and issued a decision without a hearing on August 14, 2019. In the decision, the AJ first concluded Complainant failed to prove a prima facie case of discrimination or reprisal. Nonetheless, the AJ analyzed the Agency’s proffered reasons and found them to be legitimate and nondiscriminatory. The AJ noted that Complainant disagreed with the Agency’s actions, but Complainant offered no actual evidence of pretext. The AJ then found Complainant failed to demonstrate a hostile work environment because the alleged incidents were insufficiently severe or pervasive and not based on his protected classes. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020000425 6 Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, for purposes of this decision only, that Complainant established a prima facie case of discrimination based on her sex, race, color, disability, or previous EEO activity, like the AJ, we find that the Agency articulated, legitimate, non-discriminatory reasons for its actions as were set forth in detail above. We also find no evidence of pretext. Complainant has simply not provided any evidence that raises a genuine issue of material fact that his protected bases played any role in any of the actions in dispute. Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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 a protected basis -- in this case, because of his sex or for engaging in prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Construing the evidence in the light most favorable to Complainant, the Commission finds that the totality of the incidents alleged by Complainant are not sufficiently severe or pervasive to establish a hostile work environment. We note that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. 2020000425 7 We find that the Agency's actions toward Complainant here were ordinary workplace interactions, with no abusive conduct based on Complainant's protected classes. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 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. 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. 2020000425 8 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. 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 January 22, 2021 Date
