U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020003569 Agency No. HS-TSA-24077-2015 DECISION On May 28, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 1, 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. BACKGROUND During the relevant time, Complainant worked for the Agency as a Transportation Security Officer (TSO), E-Band, assigned to Tulsa International Airport in Tulsa, Oklahoma. On August 3, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (sexual orientation/gay male) and/or in reprisal for prior protected activity when: 1. On October 21, 2014, Complainant received a lower than expected annual performance rating; 2. On March 17, 2015, a Behavioral Detection Officer (BDO) instigated false charges against Complainant; 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. 2020003569 2 3. On or around March 17, 2015, a Transportation Security Officer (TSO) made multiple false and defamatory statements against Complainant; 4. On or about March 23, 2015, Complainant learned that a TSO and BDO told management that he was a threat to their lives and to the lives of all TSA employees; 5. In March 2015, Complainant was never provided with any of the alleged charges against him; 6. On or around April 16, 2015, a Human Resources Specialist (HRS) failed to report false accusations by the BDO and TSO of workplace violence that were brought against Complainant; and 7. On May 2, 2015, Complainant was issued a three (3) day suspension. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew his request on March 6, 2020. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Performance Appraisal - Claim 1 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 a complainant to prevail, he or she 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. 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, non-discriminatory 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. 2020003569 3 Where, as here, 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). Complainant asserted that on October 21, 2014, he received a lower than expected annual performance rating. Complainant’s first line supervisor (“S1”) prepared the appraisal. S1 had replaced Complainant’s former supervisor as Complainant’s rating official after he had received his mid-year progress review in April 2014. S1 gave Complainant an overall year-end rating of 3.69 (“Exceeded Expectations”). S1 stated that the rating was not higher because Complainant had communication issues with other employees. He noted Complainant had recorded instances of confrontation with other TSOs and a supervisor. S1 stated that he provided Complainant with performance guidance and feedback during the rating period, including having him taken online classes to provide him with better tools in dealing with others. The evidence shows that Complainant had also received several written memorandums in the past for rudeness to coworkers or passengers. The Transportation Security Manager (“Manager”) was the reviewing official and agreed with S1’s rating. The Manager noted that Complainant had communication problems including a lead TSO observing Complainant yelling at another TSO on May 3, 2014. The record contains a copy of the Lead Security Officer’s email dated May 3, 2014, in which he observed Complainant “very loudly yell out at a named TSO “you don’t have to use the button just send them to Standard lane.” The Manager also noted that a Lead TSO observed Complainant having a “flippant attitude” with a supervisor when he returned late from a break on August 20, 2014. The record contains a copy of an email where the Lead TSO stated that on August 20, 2014, she allowed Complainant on a break “at 1845 but [Complainant] did not return until 1905. When I approached [Complainant] as [he] returned, [he] had a flippant attitude regarding returning on time…returning late can create a domino effect, throwing [his] teammates’ breaks behind.” The evidence of record supports the Agency’s conclusion that responsible management provided statements articulating legitimate, non-discriminatory reasons for the disputed action, which Complainant failed to prove, by a preponderance of the evidence, were a pretext masking discrimination due to his sexual orientation or unlawful retaliatory animus. 2020003569 4 Allegation of False Charges - Claim 2 - 7 Claims 2 -7 all relate to the same incident that occurred on March 17, 2015. Complainant believed that an identified Behavioral Detection Officer (“BDO”) and a Transportation Security Officer (“TSO1”) instigated false charges against Complainant, claiming he was a threat to their lives and to the lives of all TSA employees. The Manager stated that on March 17, 2015, TSO1, a relatively inexperienced officer, had screened a female passenger’s items and found a prohibited item. TSO1 then gave the item to the Lead TSO and held the remaining passenger’s items until he received further instructions from the Lead TSO. Complainant stated that when he entered the area where TSO1 was holding the passenger’s belongings, he instructed TSO1 to return the items to the passenger. The Lead TSO averred that during the incident Complainant criticized TSO1 loudly and commented several times that he was incompetent, and that the incident was in view of the traveling public. Later that day, TSO1 stated that he asked BDO to walk with him to the parking lot because he feared that Complainant may cause him bodily harm. At some point in explaining his fear, in addition to the incidents described above, TSO1 accused Complainant of making statements “regarding murders and cannibalism on a daily basis in the break room.” After learning of TSO1’s concerns from BDO, the Manager reported the matter to Human Resources as required by the Agency’s Workplace Violence Prevention Program. Pending the completion of an investigation into the matter, TSO1 and Complainant were assigned duties that kept them separated. On March 28, 2015, the Manager said he had a pre-disciplinary discussion with Complainant about the March 17 incident and advised him of the allegations against him. Complainant was given an opportunity to respond. On May 2, 2015, Complainant was issued a three (3) day suspension for the events of March 17, 2015, for “Inappropriate Conduct.” The notice of suspension stated that the March 17, 2015 incident was observed by witnesses, who described Complainant as bullying and loudly berating TSO1. Moreover, the Manager noted that Complainant failed to use required “Tactical Communication” skills “to defuse a small situation with another officer. Instead, [Complainant] chose to escalate the situation by berating the officer in front of fellow officers and the traveling public…[Complainant’s] failure to exercise courtesy and tact while communicating . . . and [his] disrespectful conduct to [his] fellow workers, all while in view of the traveling public, is in clear violation of MD 1100.73-5.” To prove his discriminatory harassment claim, 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 sexual orientation and/or prior protected activity. 2020003569 5 Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). While Complainant disagrees with the version of events provided by other witnesses concerning the incident on March 17, 2015, he has failed to prove that management’s actions were not, in fact, motivated by their perception that he had acted in an inappropriate manner by berating a junior officer in bullying manner in view of passengers. In sum, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his sexual orientation or prior protected activity. Complainant makes bare assertions that the Agency has a long history of discrimination against the LGBTQ community but provides no evidence of particulars. He also asserts that the BDO, who reported the March 17, 2015 incident, was predisposed against him due to his sexual orientation because she was an evangelical Christian. However, he again provides no evidence to support his claim or connect her alleged feelings about him directly to the incident in question. Finally, Complainant, on appeal, provided two statements from coworkers that were prepared after the Agency issued its final decision. We have reviewed these statements and find they are not relevant to the issues at hand as neither of the individuals making the statements witnessed the events at issue or were privy to any relevant management discussions about these events. Complainant’s claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his sexual orientation or unlawful retaliatory animus. 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: 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. 2020003569 6 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. 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. 2020003569 7 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 November 29, 2021 Date
