Robert C. Tencer, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity CommissionJan 13, 2012
0120110575 (E.E.O.C. Jan. 13, 2012)

0120110575

01-13-2012

Robert C. Tencer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.




Robert C. Tencer,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Transportation Security Administration),

Agency.

Appeal No. 0120110575

Agency No. HS-0-9TSA-004863

DECISION

On October 29, 2010, Complainant filed an appeal from the Agency’s

September 29, 2010, 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. and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

For the following reasons, the Commission AFFIRMS the Agency’s final

decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Transportation Security Officer at the Agency’s Los Angeles

International Airport in Los Angeles, California. On May 10, 2009,

Complainant filed an EEO complaint alleging that the Agency discriminated

against him and subjected him to a hostile work environment on the bases

of his race (Caucasian), religion (Jewish), disability (physical and

mental), and in reprisal for prior protected EEO activity when:

1. on December 11, 2008, a coworker said “Heil Hitler,” goose-stepped,

gave the Nazi salute, and often wore an SS storm trooper helmet;

2. on January 1, 2009, a coworker remarked “you filthy Jews need to

get out of Palestine. Palestine does not belong to you filthy Jews”:

3. on January 6, 2009, a Supervisory Transportation Security Officer

(STSO) called Complainant’s terminal manager to discipline Complainant

for attending a career fair for job promotion;

4. on January 8, 2009, a second STSO stopped Complainant from filing

reports alleging hostile work environment incidents;

5. on an unspecified date, management banned Complainant from Terminal 1;

6. on an unspecified date, two Transportation Security Managers (TSM)

referred Complainant to the Employee Assistance Program (EAP);

7. on an unspecified date, management denied Complainant an opportunity

to participate in TSA Diversity Day;

8. on an unspecified date, management harassed and disciplined Complainant

for using his cell phone to check on the status of his son’s flight;

9. on unspecified dates, another management official harassed and

insulted Complainant;

10. on unspecified dates, management questioned Complainant and directed

him to write a report about two pennies and a metal washer a passenger

had handed to Complainant during secondary screening;

11. from December 11, 2008 through April 8, 2009, management did not

provide Complainant with a reasonable accommodation;

12. on April 8, 2009, management terminated Complainant’s employment.

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 EEOC Administrative Judge (AJ). In accordance

with Complainant’s request, the Agency issued a final decision pursuant

to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant

failed to prove that the Agency subjected him to discrimination as

alleged. On appeal, Complainant reiterates his contention that he was

subjected to unlawful harassment and discrimination.

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,

at Chapter 9, § VI.A. (November 9, 1999) (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 parties, and . . . issue its decision based on the Commission’s

own assessment of the record and its interpretation of the law”).

Harassment of an employee that would not occur but for the employee’s

race, color, sex, national origin, age, disability, or religion

is unlawful, if it is sufficiently severe or pervasive. Wibstad

v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,

1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). A single incident or group of isolated incidents

will generally not be regarded as discriminatory harassment unless

the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358

(11th Cir. 1982). Whether the harassment is sufficiently severe to

trigger a violation of the anti-discrimination laws must be determined

by looking at all of the circumstances, including the frequency of

the discriminatory conduct, its severity, whether it is physically

threatening or humiliating, or a mere offensive utterance, and whether it

unreasonably interferes with an employee’s work performance. Harris

v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement

Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002

(March 8, 1994) at 3, 6. The harassers’ 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 (March 8, 1994).

An agency is responsible for acts of harassment in the workplace by

complainant’s co-workers where the agency knew (or should have known)

of the conduct and failed to take immediate and appropriate corrective

action. Enforcement Guidance: Vicarious Liability for Unlawful

Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999);

see Policy Guidance on Current Issues of Sexual Harassment (March 19,

1990); Villanueva v. Department of Homeland Security, EEOC Appeal

No. 01A34968 (August 10, 2006). In the instant case, we find that

with respect to the alleged harassment by Complainant’s coworkers in

claims (1) and (2), assuming arguendo the events occurred at alleged,

the Agency took immediate and appropriate measures to address the

harassment. Specifically, after Complainant reported to management that

he had been subjected to harassment by his co-workers, a Transportation

Security Manager was assigned to investigate the allegations. Report of

Investigation (R.O.I.) at 283. The record shows that upon completion of

the investigation, both of the co-workers were counseled and the alleged

harassment did not recur. Id.

With respect to the majority of Complainant’s remaining claims of

harassment, the record shows that they are either unsupported by any

credible evidence or specifically contradicted by witness statements. In

so finding, we note that the record contains affidavits from co-workers

and management officials stating that Complainant was never stopped from

filing reports, or prevented from attending the career fair or Diversity

Day. R.O.I., Exhibit F-3; F-4; F-6; F-7. Additionally, with respect to

claims (8) and (10) management found that Complainant violated Agency

policy by using his cell phone while on duty, and by placing money taken

from a passenger into his pocket. Id. at 390-397; 408; 410. Further,

the record shows that, as to claim (5), Complainant filed a report stating

that he had been exposed to hazardous fumes in Terminal 1 and, therefore,

management no longer assigned him to work in that location. Id. at 130.

Accordingly, we find that Complainant has not established that he was

subjected to hostile work environment harassment as alleged.

As to claim (12), the record shows that by letter, dated April 8, 2009,

Complainant was notified that his employment was terminated during

his trial period. R.O.I at 65. The letter cited violations of Agency

policy, including Complainant having placed money into his pocket that

had been given to him by a passenger he was screening, failure to report

for duty or call in to request leave, and using his cell phone during

duty hours. Id. The letter also cited numerous official discussions,

and a memorandum of counseling, addressing Complainant’s failures to

follow Agency policies and procedures as well as for unprofessional

behavior. Id. We find that all of the incidents cited in the notice

of termination are supported by the evidence of record and, as such,

we conclude that Complainant has not shown that the Agency’s actions

were motivated by discriminatory or retaliatory animus.

Finally, with respect to claim (11), the Rehabilitation Act prohibits

discrimination against qualified disabled individuals. See 29 C.F.R. §

1630. In order to establish that Complainant was denied a reasonable

accommodation, Complainant must show that: (1) he is an individual with

a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified

individual with a disability pursuant to 29 C.F.R. § 1630.2(m);

and (3) the Agency failed to provide a reasonable accommodation. See

Enforcement Guidance: Reasonable Accommodation and Undue Hardship under

the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002)

(“Enforcement Guidance”). Under the Commission’s regulations, an

Agency is required to make reasonable accommodation to the known physical

and mental limitations of a qualified individual with a disability unless

the Agency can show that accommodation would cause an undue hardship. See

29 C.F.R. §§ 1630.2 (o) and (p).

Upon review of the entire record in this case, the Commission finds that

assuming, arguendo, Complainant is an individual with a disability,

he has not established that the Agency violated the Rehabilitation

Act. Specifically, the record does not show that Complainant ever

requested a reasonable accommodation. Here, the record shows

that Complainant filed several work related injury claims, provided

medical documentation to support these claims, and made a request for

extended leave under the Family and Medical Leave Act. R.O.I. at

300-388. Complainant has provided no evidence, other than his

unsupported assertion, to show that he at any time requested a reasonable

accommodation under the Rehabilitation Act. We note that agencies are

only required to accommodate known mental or physical limitations.

CONCLUSION

We AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this

case if the Complainant or the Agency submits a written request containing

arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party’s timely request for reconsideration. See 29

C.F.R. § 1614.405; Equal Employment Opportunity Management Directive

for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

77960, Washington, DC 20013. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. § 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the

request and the civil action must be filed within the time limits as

stated in the paragraph above (“Right to File a Civil Action”).

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 13, 2012

__________________

Date

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0120110575

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120110575