U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004281 Agency No. HS-TSA-02366-2018 DECISION Complainant timely 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 May 7, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO) at the Ronald Reagan Washington National Airport in Arlington, Virginia. Report of Investigation (ROI), at 20. On July 18, 2018, a Supervisory Transportation Security Officer (STSO-1) issued Complainant a Letter of Counseling (LOC) due to loud inappropriate comments he reportedly made, the day before, to supervisors in the presence of passengers and Transportation Security Officers (TSOs). ROI at 92-93. In the LOC, STSO-1 specifically noted that Complainant loudly said, “I’m sick of this. None of you supervisors know the [Standard Operating Procedure (SOP)].” Id. 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. 2020004281 2 According to STSO-1, after she told Complainant not to speak to her that way, Complainant interrupted her by saying, “shut up, shut up, shut up” while waving his hand dismissively. Id. Meanwhile, on March 22, 2018, the Agency posted Vacancy Announcement No. DCA-18- 443867, advertising vacancies for 13 Lead Transportation Security Officer (LTSO) positions in Arlington, Virginia. Id. at 140. Complainant applied for the position, and on April 16, 2018, the Agency issued a Certificate of Eligibles. Complainant, along with 103 other candidates, was included in the Certificate for the position. Id. at 88-90. However, he was not among the 32 candidates considered for an interview and, ultimately, not selected for one of the 13 vacancies. Id. at 90. During the selection process, four Supervisory Transportation Security Officers (STSOs) completed a Final Consensus Sheet wherein they rated applicants in various categories on a scale of one to five, five being the best score. Id. at 102. The STSOs evaluated attention to detail, flexibility, interpersonal skills, oral communication, and leadership. Complainant, however, did not receive a more than an average score of “3” in any of the categories. Id. The Final Consensus Sheet noted that Complainant was not recommended for the LTSO position by the four STSOs who evaluated him. Id. According to the Transportation Security Manager, who was responsible for collecting the Final Consensus Sheets, the STSOs who evaluated Complainant concurred that Complainant did not show any initiative in wanting to learn the duties of the lead position. Id. at 71. As a result, Complainant was not among the 32 candidates chosen for an interview. Id. at 160. On or about August 7, 2018, Complainant learned that he was not one of the selectees for position. Id. at 22. On September 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (47) and reprisal for prior protected EEO activity2 when: 1. On July 18, 2018, management issued him a Letter of Counseling (LOC); and 2. On August 7, 2018, he became aware that he was not selected for a F-Band Lead Transportation Security Officer (LTSO) position announced under Vacancy Announcement No. DCA-18-443867. Following 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. 2 Complainant previously filed an EEO Complainant on October 30, 2015, naming the Deputy Federal Security Director (DFSD) as the responsible management official. 2020004281 3 Specifically, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish were pretextual. In so finding, with respect to claim 1, the Agency noted that Complainant was issued the LOC based on his comments and inappropriate behavior on July 17, 2018. According to the Agency, a second Supervisory Transportation Security Officer (STSO-2) affirmed that he witnessed Complainant’s conduct as represented in the LOC. The Agency further noted that STSO-1 was not aware of Complainant’s age or protected EEO activity when the LOC was issued. With regard to claim 2, the Agency stated that a consensus was reached not to recommend Complainant for an interview because supervisors reported that he did not show any initiative in wanting to learn the duties and responsibilities of the lead position. The Agency found that Complainant did not establish that he was subjected to discrimination or harassment, as he did not show that the Agency’s actions were due to his age or prior EEO activity. CONTENTIONS ON APPEAL On appeal, Complainant maintains that several coworkers informed him that the Deputy Federal Security Director (DFSD) wanted to retaliate against him because of his prior EEO complaint wherein he named the DFSD as the responsible management official. According to Complainant, the DFSD most likely became embarrassed when he (Complainant) called out management on July 17, 2018, for not following Standard Operating Procedures, and then inappropriately directed STSO-1 to discipline him. Complainant additionally asserts that an employee, possibly a management official, has been spreading rumors about him and a female coworker, implying that they have a sexual relationship.3 STANDARD OF REVIEW 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”). 3 The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Should he wish to pursue this new claim, regarding his allegations that employees had been spreading rumors about him, Complainant is advised to contact an EEO Counselor to initiate the administrative process. 2020004281 4 ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp, v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co, v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, assuming arguendo that Complainant established a prima facie case of discrimination based on reprisal and his age, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, with regard to claim 1, STSO-1 explained that Complainant was issued the LOC due to his “Inappropriate Comments and Unprofessional Conduct” on July 17, 2018. ROI, at 75. Regarding claim 2, the Transportation Security Manager attested that she met with supervisors to discuss their impression of the candidates and whether they would recommend them for the LTSO position. Id. at 71. According to the Transportation Security Manager, the Supervisors who evaluated Complainant concurred that he did not show any initiative and desire with respect to learning or performing the duties and responsibilities of the LTSO position. Id. Further, in evaluating Complainant for the LTSO position STSO-1 wrote, for example, that Complainant had issues responding to the traveling public. According to STSO-1, Complainant would sometimes share too much information with the public, as if commiserating with them in complaining about staffing issues. Id. at 105. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant contends that several coworkers informed him that the DFSD wanted to subject him to retaliation for his prior protected EEO wherein he named the DFSD as the responsible management official. However, despite Complainant’s contentions, there is no evidence that the DFSD directed STSO- 1 to issue Complainant the LOC. We note that the STSO-1 denied having knowledge of Complainant’s age or prior protected EEO activity, and Complainant does not dispute that he called out management on July 17, 2018, accusing them of not following Standard Operating Procedure. We also find no evidence showing that the DFSD was involved in the selection process with regard to claim 2. The STSO-1 did provide Complainant with very low evaluation scores regarding his attention to detail, flexibility, interpersonal skills, oral communication, and leadership. ROI, at 103-105. 2020004281 5 However, there is simply no evidence that STSO-1, or any other official involved in the selection process, was motivated by discriminatory or retaliatory animus. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. We find that Complainant has not established that he was subjected to discrimination regarding his LOC or non-selection. Hostile Work Environment To the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) his claim 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 or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 decision finding no discrimination. 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 2020004281 6 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). 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. 2020004281 7 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 13, 2021 Date
