U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darren M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004737 Hearing Nos. 550-2019-00409X 550-2020-00014X Agency Nos. HS-TSA-01099-2018 HS-TSA-00859-2019 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 July 23, 2020, final decision concerning his equal employment opportunity (EEO) complaints 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal (FAM), SV-1801-I, in the Agency’s Federal Air Marshals Service Field Office in Seattle, Washington. The Supervisory Federal Air Marshal was Complainant’s first level supervisor (S1). The Assistant Special Agent in Charge (ASAC) was Complainant’s second level supervisor. The Supervisory Air Marshall in Charge (SAC) was Complainant’s third level supervisor. 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. 2020004737 2 On March 27, 2018, Complainant filed an EEO complaint, which was subsequently amended, alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of national origin (Hispanic) and in reprisal for prior protected EEO activity when: 1. On February 7, 2018, management issued Complainant a derogatory write-up on his performance award. 2. On April 23, 2018, management issued Complainant a derogatory write-up on his midyear appraisal. 3. On April 23, 2018, management required Complainant to document in writing and to report to his immediate supervisor any communication he had with management. 4. On June 19, 2018, management made Complainant the subject of an Incident Tracking Report (ITR). 5. On July 17, 2018, management alleged Complainant made racial jokes and began preparing disciplinary action against him. 6. On July 27, 2018, management subjected Complainant’s conduct to a higher level of scrutiny and charged Complainant with being late for a medical appointment and returning to work. 7. On September 17, 2018, management spoke to Complainant in a loud voice, singled Complainant out for a badge/credential check, removed Complainant from an international mission, directed him to write a statement regarding his personal gear and tactical badge before taking sick leave, and reassigned him to restricted duty. 8. On September 17, 2018, Complainant was subjected to a higher and different standard when submitting an administrative form for a workplace incident. 9. On September 20, 2018, management accused the Complainant of altering an administrative form for a workplace incident. 10. On September 26, 2018, management began processing an ITR against Complainant. 11. On October 29, 2018, management issued Complainant a negative end of year appraisal for Fiscal Year (FY) 2018, to include applying Agency policy in an unequal and discriminatory manner. On April 6, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of national origin (Hispanic) and in reprisal for prior protected EEO activity when: 12. On February 9, 2019, management failed to give Complainant an in-band pay increase (IBI) and/or a cash award for FY 2018. At the conclusion of the investigation, the Agency provided Complainant with a copy of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing on his complaints and an AJ consolidated both complaints for processing. Subsequently Complainant withdrew his request for a hearing. 2020004737 3 Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) on both complaints. The decision concluded that management articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. Regarding claim 1, S1 stated that his write-up for the award praised Complainant for using the proper chain of command. He stated Complainant had been deficient in utilizing the chain-of- command, that Complainant corrected this deficiency, and that there was nothing derogatory about a notation concerning improvement in performance. Regarding claim 2, S1 noted that he wrote on Complainant’s mid-year appraisal that Complainant was required to promptly respond to a supervisor’s calls, texts, or emails. S1 stated that Complainant needed to work on his communication with S1. He stated that as a FAM, Complainant was on call 24 hours a day, and Agency policy stated that FAMs should be punctual in their engagements and shall diligently perform their duties. Regarding claim 3, S1 denied directing Complainant to document in writing and to report to him any communication Complainant had with management. S1 explained he did request Complainant respond if a supervisor reached out to him via text, email, or phone. He also stated that if Complainant had a concern about guidance, he should ask his immediate supervisor. Regarding claim 4, S1 stated that management, not he, initiated the ITR. S1 noted that another Supervisory FAM (Supervisory FAM 2) brought to his attention that a discussion occurred about a former FAM from Newark who made threatening comments about former colleagues and management. The former FAM mentioned he was looking at how to make and use explosives and was ultimately arrested by the Federal Bureau of Investigation. Complainant was overheard by the Supervisory FAM 2 saying, “What do you expect when you treat employees this way.” S1 stated he interviewed Complainant and requested a statement from Complainant because his statement was overheard by a supervisor in a Federal law enforcement workplace. Regarding claim 5, S1 explained that another FAM made an inappropriate comment in front of Complainant, who was the Team Leader for an International mission, two other FAMs, and a supervisor about how guns only go off themselves “when Mexicans and African-Americans are present.” S1 noted statements were requested from all FAMs present to include the Supervisor giving the briefing. S1 stated the FAM who made the inappropriate comments stated in a signed statement that he (the FAM who made the statement) and Complainant were friends and “this is how he jokes with him.” S1 stated that it is his job as a supervisor to address inappropriate racial jokes in the workplace because they are Federal Law Enforcement Officers and are held to the highest standards. S1 stated that he verbally counseled Complainant for his part in the conversation and that the FAM who made the racial remark received discipline. Regarding claim 6, S1 denied that he subjected Complainant to a higher level of scrutiny than others. He noted no corrective or disciplinary action was taken against Complainant for his tardiness in arriving at the scheduled medical appointment or for his delay in returning to the office after the appointment. 2020004737 4 S1 stated Complainant and another FAM had a scheduled appointment for a work-required physical at a location which was 14 miles away from the office. They arrived 45 minutes later than the scheduled appointment time and after the appointment they took one hour and 20 minutes to make the return trip to the office. S1 stated Complainant’s failure was in not contacting his office and giving notice he was late for the appointment and in his return to the office. Regarding claim 7, S1 stated Complainant attempted to use another FAM’s tactical badge as his own in order to obtain clearance to travel on an international flight. S1 stated he believed Complainant was trying to conceal the serial number on the tactical badge with paperwork so S1 would not look at the serial numbers to see if they matched. Also, S1 noted that it took three times for Complainant to be asked whose tactical badge he was trying to represent as his own before Complainant admitted it was another FAM’s serialized badge. S1 noted an ITR was initiated, which led to an Office of Professional Responsibility (OPR) investigation, after consultation with Headquarters and legal counsel. Complainant stated after the incident occurred, he was feeling stressed and wanted to take sick leave for the remainder of the day. Complainant was told after he completed his statement regarding the incident, he could take sick leave. Complainant’s leave request was approved. As a result of his actions, Complainant was placed on restricted duty pending a review of the incident. Regarding claim 8, Supervisory FAM 3 denied holding Complainant to a higher standard when he submitted a leave request form on September 17, 2018. Supervisory FAM 3 was present to receive Complainant’s leave form. Supervisory FAM 3 stated that the sick leave form had scratches, scribbles, and inappropriate writing. Thus, Complainant was told the form submitted was unacceptable and he was instructed to fill out another clean form. Supervisory FAM 3 stated he did nothing to provoke Complainant. He stated that an employee is required to provide a decipherable form when requesting leave. Regarding claim 9, S1 and Supervisory FAM 3 denied accusing Complainant of altering an administrative form for a work-related incident. S1 explained that on September 20, 2018, he and Supervisory FAM 3 were present when S1 handed Complainant a Restricted Duty Memorandum, based upon Complainant’s conduct on September 17, 2018, during the pre- clearance inspection before an international flight. S1 noted when Complainant signed the memorandum to acknowledge receipt, he added “Directed to sign, no witnesses allowed for me by my selection.” Regarding claim 10, S1 noted the ITR was initiated as a result of Complainant’s conduct on September 17, 2018 (the badge incident in claim 7). He stated Complainant’s actions were egregious and his conduct was misleading and deceitful and had to be reported. The ASAC reported that upon receipt of the ITR from S1, he submitted the ITR to Headquarters for further action. The ASAC described the incident with which Complainant was charged as “misrepresentation with the intent to mislead including material and/or intentional falsification, concealment, and omission of fact.” 2020004737 5 Regarding claim 11, S1 stated as the Rating Official, he rated Complainant’s performance as “0.0” - unacceptable, because “all Seattle Field Office management and filed counsel believed that we could not justify giving [Complainant] Achieved Expectations on some of the rating scores. [Complainant] was misleading, not forthcoming, deceitful and deceptive.” Regarding claim 12, S1 explained that in February 2019, Complainant did not receive an IBI and/or cash award (concomitant with the adjustment to his FY 2018 Performance Appraisal), because in February 2019, the ITR remained pending. He stated that Agency policy restricted employees with ITRs from receiving performance awards or IBIs. Further, the Agency found the record did not support Complainant’s hostile work environment claim. The Agency noted the record shows that management’s decisions and actions were in response to Complainant’s conduct and job performance, and that their decisions and actions were consistent with managerial responsibilities and were guided by Agency policy. 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”). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show by a preponderance of evidence that any of the actions were motivated by discrimination or in reprisal for his protected EEO activity. Regarding claim 7, Complainant claims that other FAMs have been allowed to borrow equipment, and that he was treated differently when missing his tactical badge. However, S1 stated that other FAMs who have been allowed to borrow equipment have been forthcoming when missing gear and brought it to their supervisor’s attention. In contrast, Complainant did not bring the matter to S1’s attention prior to it being discovered. Moreover, S1 felt that Complainant was actively trying to hide the fact that he did not have his own badge. Further, when questioned, Complainant was asked three times whose tactical badge he was using before he admitted it was another FAM’s badge. 2020004737 6 Regarding claim 11, Complainant alleged that management issued favorable performance ratings to two FAMs who were also subject to ITRs and who received formal discipline. In response, S1 noted regarding Comparative 1, he was issued an ITR resulting in a three-day suspicion and received an acceptable performance. However, S1 stated that he was not the assigned Supervisory FAM for Comparative 1 during the year end appraisal. He also stated that Comparative 1 was not deceptive, deceitful, or misleading. Regarding Comparative 2, S1 stated Comparative 2 was issued two ITRs resulting in Letters of Counseling and received a higher performance score than Complainant. Again, S1 stated he was not the assigned Supervisory FAM at Comparative 2’s end of year appraisal. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. We note that Complainant provided statements from several coworkers in support of his claims of discrimination. A review of these statements reveals that the coworkers did not witness many of the alleged incidents, learned of the incidents from Complainant, acknowledged that they did not hear any discriminatory or retaliatory statements being made by the managers involved in connection with the claims listed, and stated they could not determine the mindset of management officials who took the complained of actions. Apart from speculation and disagreement with the challenged actions, we find Complainant failed to prove by a preponderance of evidence that management’s explanations for its actions were motivated by discriminatory animus. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2020004737 7 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. 2020004737 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 November 17, 2021 Date
