U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reuben D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004113 Agency No. HS-TSA-00828-2019 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 23, 2020, finding no discrimination concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer, 1801/G Band, at Lambert St. Louis International Airport in St. Louis, Missouri. On April 12, 2019, Complainant filed an EEO complaint alleging discrimination and harassment based on race (Black), age (over 40), disability, and in reprisal for prior 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. 2020004113 2 1. On May 9, 2018, Transportation Security Manager-1 (TSM-1) and TSM-2 called Complainant into a meeting, during which one manager closed and locked the door and refused to open it until Complainant asked him at least ten times to unlock and open the door, then moved his chair very close to Complainant, bumping his knee. 2. On May 9, 2018, during the same meeting, TSM-2, while carrying a knife and looking very angry, moved his chair close to Complainant on the other side to block Complainant in, stated that he was “fucking pissed,” because Complainant called him about some “fucking documents that could be fucking duplicate, that's bullshit,” and further stated that Complainant had given the team a "black eye," and that "they did not fucking deserve because they busted their ass" for Complainant. 3. On or around October 1, 2018, TSM-1 issued Complainant low scores on his Fiscal Year (FY) 2018 annual performance evaluation. 4. On December 31, 2018, Complainant was not selected for a TSM position, advertised under vacancy announcement #STL-18-517132. 5. On January 15, 2019, TSM-1 and the Deputy Assistant Federal Security Director (DAFSD) failed to respond to Complainant's email requesting that he be coached and mentored and asking why he received low scores on his annual evaluation. 6. On March 4, 2019, TSM-1 denied Complainant light-duty. 7. On March 8, 2019, TSM-3 interrogated and belittled Complainant about his light-duty profile. 8. On May 10, 2019, the DAFSD removed Complainant from a Behavior Detection Optimization Program (BDO) Instructor position. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that he had a Post-Traumatic Stress Disorder. Regarding claims 1 and 2, a very short meeting was held in response to Complainant’s complaints he reported to the DAFSD that the Logistics team lost his paperwork and left some sensitive documents lying around. The Logistic team was responsible for moving Complainant’s office equipment and files to another office from his office while his office was being renovated. The TSMs denied locking the door or bumping into Complainant’s knee. The door was partially open during the meeting at Complainant’s request. TSM-2 had a knife in his pocket which was not visible because he was opening packages and boxes at that time. Complainant never made any reference to the knife at that time. TSM-2 denied cursing as alleged. 2020004113 3 Regarding claim 3, Complainant received a “exceeds expectation” rating (lower than the highest rating of “achieved excellence”) for his FY 2018 annual performance evaluation because he was continuously behind in his Online Learning Center training; he failed to complete his mid-year appraisals on time and some he did complete were lost and he had to redo them; and he failed to complete assignments as required. Regarding claim 4, there were 35 applicants who made the certificate list for two vacancies for the TSM, H Band position at issue. Three member panelists interviewed them using a standard criterion form and recorded the results to include a consensus score. Candidates were given maximum 30 points for interview, 30 points for performance evaluation, and 40 points for TSM assessment, with total maximum 100 points. Complainant received 24 points for interview, 20 points for performance evaluation, and 31.92 points for TSM assessment, with total 75.92 points (ranked 17th out of 35 applicants). The top two selectees who received total points of 98.9 and 96.57 were selected for two vacant TSM positions. Regarding claim 5, TSM-1 stated that he did not respond to Complainant’s email at issue directly; rather TMS-1 instructed TSM-3 to mentor Complainant as requested. TSM-3 acknowledged that he began mentoring Complainant immediately in January 2019, for his performance improvement. TSM-3 reported the progress to the DAFSD. Regarding claim 6, Complainant requested light duty in March 2019, after he injured his foot. TSM-3 requested medical documentation for Complainant’s request. Complainant admitted that after he submitted the requested medical documentation from his physician on March 5, 2019, his light duty was approved on the same day. Regarding claim 7, TSM-3 denied the incident. Regarding claim 8, Complainant was not permanently removed from teaching the BDO class. Rather, Complainant was taken out of the rotation so he could focus on his supervisory duties of which he was being mentored. Complainant was scheduled to teach the BDO Program in September 2019. 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 (EEO MD-110), Chap. 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 2020004113 4 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 that any of the actions were motivated by discrimination. Furthermore, Complainant failed to show that his qualifications for the TSM position at issue were plainly superior to the selectees’ qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Regarding his accommodation claim, Complainant admitted that he was immediately accommodated with his requested light duty, i.e., performing administrative work in the office for 120 days, when he provided the requested medical documentation. Complainant does not claim that he requested/was denied an accommodation for his Post-Traumatic Stress Disorder. 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 has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2020004113 5 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). 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. 2020004113 6 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 July 21, 2021 Date