U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Riley W.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000895 Hearing Nos. 550-2019-00141X 550-2019-00527X Agency Nos. HS-TSA-01037-2018 HS-TSA-00210-2019 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 October 14, 2020, final order concerning his consolidated 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 order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal, 1801, I Band, at the Agency’s Seattle Field Office facility in Renton, Washington. 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. 2021000895 2 On February 13, 2018, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against him on the bases of race (Asian) and reprisal2 when: 1. During 2013, management repeatedly requested Complainant’s opinion about the Visible Intermodal Prevention Response (VIPR) program and how to improve it. 2. During 2013, management gave Complainant a low rating on his performance review. 3. During 2016, management gave Complainant a low rating on his performance review. 4. On December 9, 2016, management denied Complainant an Individual Performance Increase (IPI). 5. On January 6, 2017, management accused Complainant of not being professional. 6. On various dates in 2017, management denied assisting Complainant in making a hotel reservation. 7. On December 19, 2017, management stated, “be careful” to Complainant. 8. On January 8, 2018, management denied Complainant a private meeting with the Supervisory Air Marshal in Charge. 9. On January 8, 2018, Complainant was denied an IPI. 10. On March 14, 2018, management subjected Complainant to an interrogation-style meeting. 11. On March 19, 2018, management informed Complainant of pending Incident Tracking Reports (ITR). 12. On March 19, 2018, management instructed Complainant to complete 48 Online Learning Center (OLC) courses. 13. On March 19, 2018, management ordered Complainant to report to his supervisor for weekly job performance updates. 2 Complainant asserts that all incidents after February 2018 (when he first filed his EEO claim and informed his chain of command of such) were retaliatory. Thus, Complainant’s reprisal claim allegation applies to claims 10 - 30. 2021000895 3 14. On April 11, 2018, management removed Complainant from three assigned international missions. 15. On April 18, 2018, management gave Complainant a negative mid-year performance review. 16. On April 21, 2018, management placed Complainant on restricted duty. 17. On April 23, 2018, management instructed Complainant to report daily activities during restricted duty hours. 18. On April 23, 2018, management informed Complainant of a pending ITR. 19. On April 24, 2018, management issued Complainant two ITRs. 20. On April 30, 2018, management accused Complainant of not completing the assigned OLC courses by the set deadline. 21. On May 1, 2018, management accused Complainant of lack of candor. 22. On May 16, 2018, management emailed Complainant falsely accusing him of anger issues, outbursts, unprofessionalism, and candor issues. 23. On June 5, 2018, management issued Complainant an ITR. 24. On June 5, 2018, management issued Complainant a Letter of Counseling. 25. On July 27, 2018, management required Complainant to write a statement explaining why he was late returning to the office after the annual physical exam. 26. On July 27, 2018, management required Complainant to write a statement explaining why it took longer than usual to return to the Seattle field office. 27. On or around October 2018, management improperly disclosed Complainant’s medical information on his Fiscal Year (FY) 2018 annual performance evaluation.3 28. On October 24, 2018, management gave Complainant a score of 3.18 on his annual performance evaluation for FY 2018. 3 Claims 27 - 30 are part of a second complaint that Complainant filed with the Agency. The Administrative Judge (AJ) consolidated the two complaints. Although they are labeled claims 1 - 4 in the Agency’s final decision, they have been renumbered here for efficiency. 2021000895 4 29. On February 9, 2019, management did not give Complainant an IPI for FY 2018. 30. On February 13, 2019, management violated policy for mentioning Complainant failed his annual firearms qualification on his FY 2018 end of year performance evaluation. At the conclusion of 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). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 27, 2020, motion for a decision without a hearing and issued a decision without a hearing on September 8, 2020, finding no discrimination. The AJ adopted the Agency’s argument that claims 1 - 7 should be dismissed for untimely EEO Counselor contact. On appeal, Complainant has not argued that these claims were timely raised; therefore, we shall not address claims 1 -7. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 2021000895 5 Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). 2021000895 6 In order to establish a claim of harassment, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In order to meet the requirements of prong 4, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We find that Complainant has failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to show he was subjected to a discriminatory hostile work environment. Claim 8 Complainant asserted that he requested a meeting with S3 to discuss the harassment he allegedly suffered under S1, but S3 refused. On January 8, 2018, Complainant was scheduled to meet with S3 but was unaware that S1 would be present. S3 stated that he called the meeting in response to a December 2017 incident in which Complainant failed to use proper protocol in requesting leave; the objective of the meeting was to improve communication between Complainant and S1. S3 denied knowledge of a request for a private meeting. Claim 9 Complainant alleged that the 2018 denial of an IPI was discriminatory. The Agency noted that IPIs are awarded based on budgetary availability and individual performance including mission readiness, administrative tasking and functions, training proficiency, professional accountability, collateral assignments, and supervisory feedback. Management indicated that Complainant did not score high enough on his evaluation to qualify for an IPI. Complainant asserts that while he was working under S1 he did not receive an IPI although he received them in 2014 and 2015 while working under different supervisors. Complainant asserted he was entitled to a higher evaluation because he did not have any disciplinary issues and had never been counseled for a job performance issue. Claims 10 - 13 & 19 On March 10, 2018, while on mission status, Complainant was prevented from entering the sterile area via the A-Exit by a Transportation Security Officer (TSO) at the Seattle-Tacoma International Airport. 2021000895 7 Complainant called the duty SFAM (SFAM 1) to help troubleshoot the situation. SFAM indicated that he gave Complainant simple directions to help him resolve the situation and he initially refused to follow them. SFAM 1 further stated that Complainant was unable to maintain a professional demeanor or use basic problem-solving skills through effective communication. On March 14, 2018, Complainant met with S1 and S3 to discuss the incident. Complainant asserted that S1 and S3 yelled at him, and S3 banged his fist on the table. Management asserted that during the meeting Complainant became unprofessional, disrespectful, and irate. On March 19, 2018, Complainant was informed that two Incident Tracking Reports (ITRs) would be issued. SFAM 1 submitted an ITR for failure to promptly and fully comply with directions, instructions, or assignments of a supervisor or other management official based on the incident at the Seattle Airport. Management issued a second ITR for Complainant’s unprofessional behavior during the March 14, 2018 meeting.4 On March 19, 2018, S3 assigned Complainant 48 online courses in communication and conflict resolution. S3 asserted that the courses were assigned as a result of Complainant’s lack of communication and conflict resolution skills while on mission status. S3 also required that Complainant meet with S1 weekly to assist in improving communication between Complainant and S1. Claim 14 On April 11, 2018, S3 removed Complainant from three international missions. S3 asserted that Complainant was removed from the missions due to his unstable behavior, unprofessionalism, lack of communication, and subpar conflict resolution skills. Claim 15 The Agency asserted that Complainant was given a negative mid-year evaluation because during the evaluation period, Complainant did not communicate effectively with stakeholders and showed ineffective communication and conflict management skills. Claims 16 - 18, 20, & 23 On April 19, 2018, an altercation occurred between Complainant and S1. Complainant requested the original copy of his signed mid-year evaluation. When S1 mistakenly provided Complainant with a copy, Complainant accused S1 of altering the document in front of several other employees in the office. 4 The ITRs at issue in claim 11 are the same as the ITRs at issue in claim 19. 2021000895 8 On April 21, 2018, Complainant was placed on restricted duty. S3 asserted that Complainant was placed on restricted duty due to his outbursts and unprofessional and unstable behavior while engaging with his supervisor. S3 stated that after he discussed the unprofessional outbursts with the medical department, Complainant was given a formal referral to the Employee Assistance Program (EAP). In addition, the Agency asserted that Complainant’s uncontrolled anger and agitated behavior during the March 14, 2018 meeting and his unprofessional outburst toward S1 in a public space were factors that led to Complainant being placed on restricted duty. On April 23, 2018, S1 required that Complainant report his daily tasks while on restricted duty. S1 asserted that he implemented the requirement as a performance measure. On April 23, 2018, management issued an ITR for Complainant’s behavior during the April 19, 2018 incident with S1.5 On April 30, 2018, S1 told Complainant that he needed to spend more time working on his courses because they were for his benefit. Notably, Complainant was given training deadline extensions as needed. Claim 21 On May 1, 2018, Complainant and S1 had a verbal disagreement in which S1 accused Complainant of lack of candor. S1 asserted that he called Complainant’s honesty into question after Complainant made conflicting statements regarding his intention to use a government vehicle to attend an EAP meeting. Claim 22 On May 16, 2018, S1 called Complainant to ask about their daily meeting, which was a requirement of Complainant’s restricted duty. Complainant informed S1 that he was on annual leave that day, and the call ended quickly. Complainant then emailed S1 and S2 to state that S1 was harassing him on his day off. S1 responded to Complainant’s email stating that his tone and response were inappropriate, inaccurate, and insubordinate. S1 further stated that he did not realize that Complainant was on leave that day because he was not the supervisor that approved his leave. Claim 24 On June 5, 2018, S2 issued Complainant a Letter of Counseling (LOC), which was developed by the Agency’s Office of Professional Responsibility. The Agency asserts that the LOC was issued for failing to exercise courtesy and tact when interacting with other TSA employees based on the three ITRs Complainant had already been issued. 5 The ITR at issue in claim 18 is the same as the ITR at issue in claim 23. 2021000895 9 Claims 25 & 26 Complainant was assigned a new first line supervisor (SFAM 2). On or around July 27, 2018, Complainant was scheduled to attend his annual physical at a facility 14 miles from his office and management found that Complainant took an inordinate amount of time getting to the appointment and returning to the office. SFAM 2 stated that the excessive time caught management’s attention because Complainant was late for a meeting in the office with two out- of-district FAMs that were waiting to interview him regarding an allegation he initiated. SFAM 2 stated that he required Complainant to write the email explanation because the unexplained tardiness warranted documentation. Claims 27 - 30 Complainant asserts that on his 2018 performance evaluation, management improperly disclosed his medical information by stating that Complainant participated in a “professional improvement program consisting of additional online training and professional counseling with a therapist.” Upon Complainant’s request, language regarding EAP or counseling was removed from his evaluation. The Agency asserts that the statement was intended to praise Complainant for completing an assigned task since he had otherwise fallen below performance standards in numerous measurable ways such as firearm proficiency and professionalism. We find that nobody except Complainant viewed the alleged improper disclosure and that it was then changed to remove any references to counseling. Therefore, we find that there was no improper disclosure of confidential medical information. Complainant also alleges that his 3.18 score and “achieved expectations” evaluation for 2018 were discriminatory. The Agency asserts that Complainant’s performance did not warrant a higher evaluation because he had been disciplined repeatedly for insubordination and had been required to take remedial coursework and training during the evaluation year. In addition, the Agency asserts that Complainant did not receive an IPI for 2018, because he did not meet the performance criteria. Lastly, Complainant asserts that management violated policy by mentioning that Complainant failed his annual firearms qualifications for fiscal year 2018. The Agency asserts that addressing Complainant’s training proficiency is in accordance with policy because the firearm test is required to remain on full duty status. Complainant failed to show that any of the Agency’s actions were motivated by retaliation or racial discrimination. He asserts that the Agency’s actions are related to his race because he was constantly being singled out by S1, and during his tenure there have been very few Asians in his position. Complainant has not identified any evidence to suggest that the Agency’s legitimate, nondiscriminatory reasons were pretext for racial discrimination. He further asserts that his White colleagues consistently received higher performance evaluations and IPIs for doing the same work. 2021000895 10 Complainant has not identified any evidence to support this contention. Complainant has not shown that there were similarly situated employees not in his protected groups that were treated more favorably regarding any of the claims. Complainant asserts that the Agency’s actions are retaliatory because prior to filing his complaint he barely interacted with supervisors and once he filed, management scrutinized his actions. However, Complainant provides no evidence other than his own opinion to support these contentions. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). In sum, Complainant failed to show that the Agency’s asserted legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination or retaliation. Thus, 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). CONCLUSION The Agency’s 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. 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). 2021000895 11 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. 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. 2021000895 12 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 April 7, 2022 Date
