U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Orval T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 2022000144 Appeal No. 2020001742 Agency No. HS-TSA-00796-2018 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001742 (September 13, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). The Agency’s request for reconsideration is DENIED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency’s Midway International Airport in Chicago, Illinois. Two 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. 2022000144 2 Transportation Security Managers, (S2) and (S4),2 served as Complainant’s managers. Report of Investigation (ROI) at 58, 116. On March 14, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the bases of national origin (Mexico) and age (53), and in reprisal for prior protected EEO activity (opposing discrimination and the instant EEO complaint), when: 1. in or around January 2018, management ridiculed Complainant in front of his peers; 2. in or around January 2018, management restricted Complainant from working the exit lanes without an explanation; 3. in or around January 2018, management stated, “[Complainant] should be more careful now that [he had] a target on [his] back”; 4. in or around January 2018, management stated, “[Complainant] should have come to us first instead of filing an EEO complaint. We would have handled it here”; and, 5. in or around January 2018, management threatened Complainant with disciplinary actions. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Over Complainant’s objections, the AJ granted the Agency’s October 4, 2019, motion for summary judgment and issued a decision finding no discrimination. The AJ found that Complainant did not raise any genuine issues of material fact. Regarding incidents 1 and 2, the AJ concluded that there was no evidence that the alleged harassment was based on Complainant’s membership in any protected class or that the alleged harassment was sufficiently severe or pervasive to create a hostile work environment. As for event 4, the AJ found that S4’s comment was consistent with the Agency’s policy of encouraging employees to resolve complaints at the lowest possible level and that it did not have a chilling effect on the EEO process, noting that “Complainant never alleged the statement was made with any hostility or to criticize.” AJ Decision (AJD) at 9. Regarding Complainant’s allegation that S2 said, “How dare you file a discrimination complaint,” the AJ found that S2 likely did not make the alleged comment, noting, “In the context of a heated exchange about performance, it is logical to conclude that [S2] told Complainant how dare he take that tone with her, not ‘how dare he file a discrimination complaint.’” Id. Finally, the AJ found that, assuming arguendo that S2 made the comment about Complainant having a target on his back (incident 3), 2 For purposes of consistency, this decision will refer to the responsible management officials in the same manner as in the prior appellate decision. 2022000144 3 “Complainant failed to tie the comment to his EEO activity. The comment does not on its face discourage an employee from participating in the EEO process, and therefore is not a per se violation of the reprisal law.” AJD at 10. Complainant appealed the AJ’s decision, and the Agency subsequently issued its January 24, 2020 final order, fully implementing the AJ’s decision.3 On September 13, 2021, the Commission issued a decision affirming the AJ’s decision to grant the Agency’s motion for summary judgment regarding allegations 1 and 2 because Complainant failed to identify a genuine issue of material fact related to those incidents. However, the Commission reversed the AJ’s summary judgment decision with respect to incidents 3-5, finding that the record required further development because there were genuine issues of material fact and issues of credibility that required a hearing. Orval T. v. Dep’t of Homeland Security, EEOC Appeal No. 2020001742 (Sept. 13, 2021). Our prior decision noted that the parties did not dispute that, after Complainant disclosed his EEO Counselor contact, S4 told Complainant that he should have approached management first. The AJ found that, because Complainant “never alleged the statement was made with any hostility or to criticize” and because S4 “did not exert any pressure on Complainant” to drop his complaint, S4’s comment could not have a chilling effect on the EEO process. The Commission disagreed, stating that the anti-retaliation provisions of Title VII encompass statements that are reasonably likely to deter a reasonable employee from engaging in protected activity. There is no requirement that a supervisor must pressure a complainant to drop an EEO complaint or that a supervisor’s statement must be hostile or critical to create a chilling effect. According to S4, “Any time a subordinate has a problem, we have always discussed that we try to resolve it at the lowest possible level prior to taking it to the next level. If there is a complaint about a supervisor, you go to a manager, and then to the [Deputy Assistant Federal Security Directors], or EEO. We encourage officers to address complaints at the lowest possible level, before escalating it to a higher officer or EEO.” ROI at 125. In our prior decision, however, we noted that 29 C.F.R. Part 1614 does not require an employee to approach a supervisor or manager before raising an EEO complaint. The Commission noted that Complainant indicated that he may not have pursued an EEO complaint if he had known how easy the resolution would be, immediately before S4’s alleged statement, and that the AJ must assess the credibility of both Complainant and S4 at a hearing. The AJ concluded that, even if S2 commented that Complainant had a target on his back, since the comment did not, on its face, discourage engaging in protected EEO activity, Complainant failed to establish a nexus between the remark and his EEO activity. The Commission found, however, that in determining that Complainant failed to tie S2’s comment to his EEO activity, the AJ improperly weighed the evidence. Complainant alleged that, before making the target 3 The appellate decision noted that Complainant’s appeal was premature, but that the Agency’s final order cured his initial premature appeal. 2022000144 4 statement, S2 said, “How dare you file a discrimination complaint.” The Commission found that the AJ seemed to discredit this statement by Complainant, which was consistent in his investigative affidavit and his deposition, because he did not specifically cite this comment in his formal complaint or in EEO counseling. Further, the AJ found that, “In the context of a heated exchange about performance, it is logical to conclude that [S2] told Complainant how dare he take that tone with her, not ‘how dare he file a discrimination complaint’.” But in reaching this conclusion, reasoned the Commission, the AJ appeared to be finding S2’s version of events more credible than Complainant’s. The AJ also concluded that, because Complainant told S2 and S4 that he had filed an EEO complaint on January 11, 2018, any comment by S2 about Complainant’s EEO complaint would have likely occurred on that date. However, the Commission noted several discrepancies in the record regarding the timeline of the meetings and the alleged comments. For example, Complainant stated, “I believe the meeting with [S2] and [S4] took place on or about January 24, 2018.” ROI at 59, 70. In addition, the record contains a January 26, 2018 memorandum to file, in which S2 stated that she had a follow up meeting with Complainant and S4 on January 25, 2018, while S2 later testified at her deposition that the meeting occurred on January 24, 2018. ROI at 253, S2 Deposition at 55. The Commission observed that, if Complainant referenced his EEO activity at the January 24 or 25 meeting and S4 commented at the meeting that Complainant should have come to management first, this would undermine the AJ’s conclusion that it was unlikely that S2 referenced Complainant’s protected activity at the January 11, 2018 meeting when Complainant revealed his prior activity and S4 made a comment about it. The Commission noted that, while the AJ did not explicitly cite incident 5 in her decision, she included a reference to the January 25, 2018 meeting wherein Complainant was notified, in the AJ’s words, that “improper conduct could be grounds for discipline.” The Commission concluded that there were simply too many unresolved issues that require further development of the record and assessment as to the credibility of S2, S4, and Complainant, and remanded claims 3-5 for a hearing. On October 13, 2021, the Agency requested a reconsideration of the Commission’s decision remanding incidents 3-5, alleging a clearly erroneous interpretations of material fact and law. For event 3, the Agency argued that, assuming that a reference to Complainant having a “target” on his back was in fact made, the meeting between Complainant and his managers concerned his complaint about his superiors and subsequent investigation, and there is no evidence that the statement was related to Complainant’s initiation of an EEO complaint. The Agency also asserts that it is undisputed that S2’s “expression of surprise” at the filing of Complainant’s complaint was made on January 9, 2018,4 fifteen days before S2 allegedly advised Complainant on January 24, 2018, to be careful because he had a target on his back. 4 The Agency characterizes Complainant’s allegation that S2 stated, “How dare you file a discrimination complaint” as her “expression of surprise.” 2022000144 5 Regarding event 4, the Agency acknowledges that S4 stated that Complainant should have addressed his complaint with management prior to filing an EEO complaint, and argues that this simply reflected S4’s surprise at learning that Complainant had initiated an EEO action concerning the same matter he had raised with management. However, contends the Agency, there is no evidence that management was attempting to curtail Complainant’s rights under Title VII, rather that management itself was simply attempting to resolve Complainant’s concerns. The Agency argues that S4’s statement would not have dissuaded a reasonable person from pursuing the EEO process, and that any time a manager uses the word or acronym EEO, or simply addresses the EEO process, it does not constitute per se reprisal. With respect to incident 5, the Agency notes that the Commission appears to have determined there is a question of material fact regarding Complainant’s reprisal claim, but argues that it did not articulate nor analyze such a question in its decision. The Agency asserts that S2 and S4 investigated a complaint that Complainant allegedly harassed contract employees, and that even if they told Complainant that he could be disciplined and this could be considered a threat, it was conditional upon Complainant having engaged in harassing conduct and not at all conditioned upon his protected EEO activity. The Agency claims that there is no evidence that S2’s conclusion of her investigation, with an admonition to Complainant concerning future activity at the checkpoint, was connected to his EEO activity. Complainant opposed the Agency’s request, but he did not offer specific arguments. ANALYSIS AND FINDINGS After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. As noted in the previous appellate decision, there are issues that need to be resolved at a hearing for incidents 3-5. For example, the record contains conflicting information about whether the parties met on January 24, or 25, 2018; and clarification is needed to determine what was stated at this meeting as well as the January 11, 2018 meeting. While the Agency argues that was undisputed that S2’s “expression of surprise” at the filing of Complainant’s complaint was made on January 9, 2018, we find that the record does not support this assertion. Complainant averred that he complained to S2 about incident 1 on January 9, 2018, and when S2 received his complaint, she responded, “How dare you file a discrimination complaint.” ROI at 60-1. In S2’s affidavit and her January 26, 2018 Note to File, S2 consistently noted that she received Complainant’s emailed complaint on January 9, 2018, and she and S4 met with Complainant in person on January 11, 2018. ROI at 86, 89, 94-5, 251. It is undisputed that Complainant sent his complaint to S2 on January 9, 2018, but there is no evidence that S2 responded to Complainant’s complaint on that day. In addition, the Agency argues that record contains “no evidence” that S2’s statement, that Complainant had a “target”, was connected to Complainant’s initiation of an EEO complaint. 2022000144 6 However, Complainant specified that S2 made this statement because she “was angry that [Complainant] had filed a complaint with EEO alleging racial discrimination.” ROI at 64. It is undisputed that S4 made the statement in incident 4, and the Agency argues that it was not an attempt to curtail Complainant’s rights under Title VII. However, as noted in the previous appellate decision, Complainant indicated that he may not have pursued an EEO complaint if he had known how easy the resolution would be, and a hearing is needed to assess the credibility of both Complainant and S4. Complainant Deposition at 35. In addition, the previous decision also stated that, given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti-retaliation provisions of Title VII, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). For example, the Commission has found that a supervisor attempting to counsel an employee against pursuing an EEO complaint “as a friend,” even if intended innocently, is an adverse action. Woolf v. Dep’t of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), request for recon. denied, EEOC Request No. 0520090560 (Aug. 21, 2009). While the Agency argues that S4 had no intent to discourage Complainant’s EEO activity, an innocent purpose can still result in an adverse action. To the extent that the Agency appears to argue that S4’s statement did not constitute per se reprisal, we remind the Agency that the appellate decision did not find that Complainant proved per se reprisal. Rather, it only determined that summary judgment was not appropriate. For incident 5, S2 simply responded, “no” to the question, “[d]id you threaten [Complainant] with disciplinary action?” ROI at 100. However, in her January 26, 2018 Note to File, S2 wrote that, when she met with Complainant on January 25, 2018, she informed him that future complaints made against him “will be grounds for discipline.” ROI at 254. While S2 denied “threatening” Complainant, S2’s evidence confirmed that she made a statement regarding possible future discipline, which undermines her blanket denial and it raises a credibility issue that warrants a hearing for further questioning. We find that the Agency has not met its burden to show that the appellate decision involved a clearly erroneous interpretation of material fact or law regarding incidents 3-5. The decision in EEOC Appeal No. 2020001742 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC’s Chicago District Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing on allegations (3), (4), and (5) and issue a decision in 2022000144 7 accordance with 29 C.F.R. § 1614.109. The Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. The Agency is further directed to submit a compliance report in accordance with the statement entitled “Implementation of the Commission’s Decision.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2022000144 8 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 28, 2022 Date
