U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roman B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021001449 Agency No. HS-TSA-02068-2019 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 November 20, 2020, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Transportation Security Officer (TSO), SV/1802/D-Band at the Agency’s Portland International Airport in Portland, Oregon. On September 19, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against and subjected him to discriminatory harassment based on race (African- American) when: 1. on August 8, 2019, a manager accused Complainant of having a bad attitude, being disrespectful in the classroom, not making eye contact, being argumentative and defensive, being late to class, and using his phone during presentations; 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. 2021001449 2 2. on August 8, 2019, a manager asked Complainant, “do you have any other employment options outside of this?” 3. on August 8, 2019, a manager asked Complainant, “do you think this is going to work for you,” and then said, “based on you not being able to answer that question, I do not think this will be a good fit;” 4. on August 8, 2019, management “terminated” Complainant from employment; 5. on August 8, 2019, a manager “stormed” down the hall while discussing Complainant’s resignation with her co-workers; and 6. on August 8, 2019, a manager suggested that a TSA uniform is more important than Complainant being “terminated.” After its investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant did not respond to the notice. On November 20, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment - (Claim 4) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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. 2021001449 3 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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record supports that the Agency articulated legitimate, non-discriminatory reasons for Complainant’s removal. Complainant was hired by the Agency on August 5, 2019, and was scheduled to complete a one- week orientation training with the other newly hired TSOs. However, Complainant’s employment ended on August 8, 2019. Complainant acknowledged that management officials never used the words “you’re fired” or “we are terminating you.” Complainant, however, indicated that based on his interactions with the Program Specialist (PS) and the Transportation Security Manager (TSM), he believed that he would be removed. Specifically, Complainant testified that the PS informed him that he “would not be a good fit” as she left the room, in response to Complainant not answering her question as to whether or not he wanted to be at work. Consequently, Complainant alleges that he was constructively discharged on August 8, 2019. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). Our review of the record indicates that Complainant voluntarily resigned from his position. Specifically, both the TSM and the PS denied that Complainant was terminated. Notably, TSM indicated that neither he nor the PS even had the authority to fire Complainant. Additionally, the TSM explained that Complainant had difficulty committing to reporting to work on time and being attentive, which resulted in the PS asking Complainant, in a calm and professional manner, if he wanted to resign. The PS explained that she had asked Complainant to comply with basic respect, attendance, and timeliness in the workplace, and when Complainant stated that he was “wasn’t sure,” the PS stated that she calmly walked him to the office where he could officially resign. The record contains a copy of Complainant’s resignation letter which states, “[Complainant] am submitting my resignation. The effective date is 08/08/2019.” After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on his race. 2021001449 4 The record indicates that the PS asked Complainant whether he wanted to resign in response to his inability to indicate whether he could commit to the Agency’s attendance and basic respect policies. Consequently, Complainant has not shown that his working conditions were so poor that a reasonable person would feel compelled to resign. Therefore, Complainant cannot establish the necessary elements to prove constructive discharge. Harassment - (Claims 1, 2, 3, 5, and 6) To establish a claim of discriminatory environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record supports that the Agency properly determined that Complainant was not subjected to discriminatory harassment as alleged in claims 1, 2, 3, 5, and 6. We discuss these claims collectively below. The record indicates that both the TSM and the PS had active roles in training the new TSO hires during a one-week orientation/training. In this instance, the one-week orientation class began on August 5, 2019, and the PS was the main official assigned with ensuring that the new hires had everything they needed to succeed in their new position. The TSM was assigned with conducting a Code of Conduct training on August 8, 2019. The PS noted that Complainant arrived late to trainings which she conducted on August 5 and 6, 2019, even though the PS had previously explained to Complainant and the other new TSOs that attendance and timeliness were really important at the Agency especially given that they would meet the department heads during orientation and it was important to make a good impression. However, the PS indicated that Complainant acted like his tardiness was “no big deal.” Consequently, Complainant arrived late again on August 8, 2019, which was the day the TSM was scheduled to teach. Complainant asserted that he arrived to the classroom on time, but left the room to put his lunch in the refrigerator. However, when Complainant returned to the classroom, the TSM had closed the door, shouted at Complainant, stated that Complainant was two minutes late, and gave a speech to the whole class on tardiness. 2021001449 5 In response, Complainant informed the TSM that it was he, the TSM, who had been late to class as Complainant had left earlier to put his lunch away. The TSM noted that, during the remainder of the class, Complainant isolated himself from the other TSOs by sitting in the corner of the room and he also played with his cellphone. The TSM also noted that Complainant rolled his eyes and “acted like a teenager” when the TSM asked him to remove his hat. Given Complainant’s performance during this August 8, 2019 training as well as his prior attendance issues, both the PS and the TSM decided to meet with Complainant on August 8, 2019 to discuss his behavior and to help correct these issues (tardiness, cellphone use,2 disrespectful behavior, falling asleep in class) so that Complainant could have a successful career as a TSO. However, the TSM stated that Complainant became very “defensive” and “agitated” during their meeting even though the TSM and the PS testified that they had remained calm during the meeting. Specifically, the TSM stated that he asked Complainant repeatedly whether Complainant could come to class, be respectful, and listen in class and Complainant responded, “I don’t know, man.” Then the TSM, unsure whether Complainant had scheduling conflicts that made it difficult for him to arrive on time, asked Complainant, “by chance do you have anything else lined up that will work better for your schedule?” Complainant believed that the TSM was asking him whether he had outside employment opportunities which Complainant responded was none of the TSM’s business. Complainant indicated that he was “insulted” and “embarrassed” by the TSM’s question. But Complainant stated that he believed that the TSM asked this comment because Complainant had “spoken up for [him]self and wasn’t willing to let [the TSM] say things to [him] that were untrue or mischaracterizing.” Consequently, Complainant did not attribute this question to his race. The PS further pressed Complainant on the issue of whether he could show up on time and pay attention, but Complainant indicated that he was unsure whether he could. The PS indicated that after orientation, Complainant would need to report to work even earlier as an officer and would have to be on time. The PS stated that she tried reframing the question about Complainant’s ability to report on time and be respectful four times, but Complainant responded, “I don’t know” to questions relating to basic expectations. Even Complainant acknowledged that he responded, “I’m indifferent” when the TSM asked him if he wanted to remain at the Agency. Thereafter, the PS suggested that perhaps the TSO position was not a good fit for Complainant, Complainant agreed, and then the PS asked Complainant, in a calm and even toned manner, whether he wanted to resign. The PS stated that Complainant responded that he wanted to resign because the conversation left a “bad taste in his mouth about the whole place.” After Complainant agreed that he wanted to resign, the PS calmly escorted Complainant down the hall to Human Resources (HR) office to process his resignation with the HR Assistant. The PS denied discussing the matter with anyone and she only later announced to the class that Complainant had resigned without offering any further details. 2 Complainant claimed that other TSOs were using their phone during training as well and felt that he was being singled out. 2021001449 6 Although Complainant asserted that a Human Resources Specialist (HR Specialist) shouted down the hallway, “just remember to bring the TSA uniform back. It’s a $10,000 federal fine if you don’t,” the PS denied having any conversation with the HR Specialist about Complainant’s resignation and she was unaware of the comment Complainant stated the HR employee made. Nevertheless, the HR Specialist indicated that she shared an office with the HR Assistant, she was aware that Complainant was resigning, and she indicated that it was her responsibility to ensure that Complainant was aware of Agency policy regarding returning his uniform. The HR Specialist further indicated that the Agency had problems in the past with employees not returning their uniforms, and she was unsure whether Complainant had been instructed on these policies since he was early in his TSO training. Considering these claims, even if true, Complainant has not shown that his race motivated management’s actions toward Complainant. Complainant generally indicated that the PS and the TSM racially profiled him when they had their meeting on August 8, 2019. However, the record reflects that Complainant was late to trainings three of his first four days of working, he was unengaged during the meetings, and he was on his phone. Consequently, the purpose of the August 8, 2019 meeting was to help address these issues so that Complainant could improve. The record further indicates that Complainant would not commit to whether he could report to work on time and be attentive. As a result, the PS suggested that Complainant should resign, and Complainant agreed. Additionally, the HR Specialist who instructed Complainant about returning his uniform was merely performing her duties and ensured that Complainant adhered to Agency policy after he resigned. Even if we assume that the TMS slammed the door in Complainant’s face, yelled at him, and inquired whether he had outside employment, there is no indication in the record that the TSM’s actions were attributed to Complainant’s protected basis. Furthermore, there is no indication that the PS’s suggestion that Complainant resign was attributed to his race. The record supports that the TSM’s alleged actions and the meeting held by the TSM and the PS were in response to what they perceived as insubordination by Complainant. Beyond his bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s race. As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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: 2021001449 7 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. 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. 2021001449 8 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 June 2, 2021 Date