U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022001677 Agency No. HS-TSA-01201-2021 DECISION On February 3, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 20, 2021 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 Supervisory Transportation Security Officer (STSO), SV-1802, G-Band, at O'Hare International Airport in Chicago, Illinois. On June 1, 2021, Complainant filed a formal complaint alleging that the Agency discriminated against him based on race/national origin (Mexican), age 54 (1967), and in reprisal for prior protected EEO activity when: 1. On April 4, 2021, a management official yelled at Complainant and “got in Complainant’s face” regarding a work assignment; and 2. On June 3, 2021, management issued Complainant a Notice of Proposed Removal which was sustained on August 9, 2021. 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. 2022001677 2 After an investigation, Complainant was informed of his right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. When Complainant did not respond within the time period specified in 29 C.F.R. § 1614.108(f), the Agency issued a final decision, pursuant to pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS Claim 1 - Harassment To prove his discriminatory 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 race, national origin, age and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S., 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 1, Complainant alleged that on April 4, 2021, the Transportation Security Manager (“TSM”) (African American, American, 55 years old) yelled at Complainant and “got in Complainant’s face” regarding a work assignment. The TSM denied yelling at Complainant or getting in Complainant’s face regarding a work assignment to move to another machine. He noted that a Closed-Circuit Television (CCTV) video proved that Complainant was yelling at him and pointing at him. The Supervisory Transportation Security Officer (“STSO”) (Black, American, 49 years old), who witnessed the April 4, 2021 incident also stated that Complainant’s account was inaccurate. STSO had been standing between Complainant and TSM during the encounter. STSO stated that TSM asked if Complainant had heard what he said to Complainant, regarding a request to move to a different work area. STSO further stated that TSM did not raise his voice or yell when talking to Complainant, but that Complainant responded to TSM, “[g]et out of my face I’m talking to STSO.” Further, STSO noted Complainant appeared upset that TSM was talking to him and when he instructed Complainant to move to another machine, Complainant replied that other STSOs did not have to move to other machines when they worked overtime. STSO informed Complainant that his statement was not true because he had asked other STSOs on overtime to move when he needed them in other areas. 2022001677 3 Here, the preponderance of the evidence does not establish that the event occurred as alleged by Complainant. Moreover, even if it did, there is no evidence other than Complainant’s bare assertions to show that the manager’s actions were motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that he failed to establish that incident in question was, in any way, motivated by his race, national origin, age and prior protected activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Removal - Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant stated that the Deputy Assistant Federal Security Director of Screening (“DAFSD”) (Caucasian, 49 years old) issued a proposal to remove him from his position on June 3, 2012. The Notice of Proposed Removal dated June 3, 2021, in which DAFSD placed Complainant on notice that he would be removed from his position, provided the following reasons based on charges of misconduct by Complainant: Charge 1: Failure to Follow Instructions Specification: On or about March 25, 2021, you modified the Baggage work schedule of Transportation Security Officer (TSO) after Deputy Assistant Federal Security Director (DAFSD) and Transportation Security Manager (TSM) 2022001677 4 instructed you not to have any involvement with TSO’s employment, including her schedule. Charge 2: Failure to Promptly Follow Instructions Specification: On April 4, 2021, while working overtime as a TSO in Terminal 3, Baggage Zone 17D, Supervisory TSO (STSO) instructed you to move to another lane, and you argued with STSO for several minutes before reporting to the other line, as instructed. Charge 3: Conduct Unbecoming Specification: On April 4, 2021, while working overtime in Terminal 3 Baggage one 17D, as TSM attempted to confirm with your work assignment, you stated, “do not speak to me” and “get out of my face,” or words to that effect. Charge 4: Providing Inaccurate Information Specification: On April 17, 2021, during a meeting with DAFSD, female TSM and male TSM, you alleged that on April 4, 2021, TSM got in your face and was within twelve (12) inches of your face and was yelling at you. However, CCTV footage of the incident shows that TSM was several feet away from you for the duration of this incident. DAFSD stated that after weighing the factors to include the nature of seriousness of the misconduct, Complainant’s job level, past discipline, the clarity in which he was on notice of policy and management’s directions, and his potential for rehabilitation, removal from federal service was warranted. DAFSD stated Complainant was separated from Agency employment on August 17, 2021 by the Assistant Federal Security Director (AFSD). She relayed the removal decision was mailed because Complainant stopped reporting to work. Beyond his bare assertions, Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons for his removal proffered by management witnesses were actually a pretext designed to mask discriminatory or retaliatory motivations. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination or unlawful retaliation for the reasons discussed above. 2022001677 5 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. 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). 2022001677 6 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 February 8, 2023 Date
