Solomon B.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Sep 18, 2018

0120161677 (E.E.O.C. Sep. 18, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Solomon B.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120161677

Hearing Nos. 430-2014-00282X; 430-2014-00335X

Agency Nos. HSTSA018252013; HSTSA000702014

DECISION

On April 20, 2016, 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
March 10, 2016, final order 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. 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 Lead Transportation
Security Officer (LTSO) at the Agency’s Charlotte-Douglas International Airport in Charlotte,
North Carolina. Complainant’s first and second-level supervisors were Supervisory Transportation
Security Officer (STSO-1) and Transportation Security Manager (TSM-1). Complainant alleged
they retaliated against him in June 2013, for having filed EEO complaint number HS-TSA-00046-
2013 in December 2012. Neither manager was named in that complaint.

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.
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Additionally, Complainant alleged that STSO-1 and another Supervisory Transportation Security
Officer (STSO-2) who supervised the baggage area retaliated against him in October 2013,
because he had filed prior complaints. In October 2013, another TSM (TSM-2) became his second-
level supervisor.

On October 31, 2013 and January 21, 2014, Complainant filed EEO complaints alleging that the
Agency discriminated against him based on reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when:

1. On June 10, 2013, his manager (TSM-1) allegedly informed him that the only
way he would be issued leave for a day was to accept Leave without Pay
(LWOP);

2. On June 25, 2013, his manager (TSM-1) marked him Absent Without Leave
(AWOL) for 2.15 hours;

3. On June 25, 2013, his manager (TSM-1) issued him a Letter of Counseling;

4. On October 9 and 22, 2013, he was directed by a supervisor (STSO-2) to perform
alarm audits; and

5. On October 23, 2013, his supervisor (STSO-1) wrote a Memorandum for Record.

After 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 October 30, 2014, motion for a
decision without a hearing and issued a decision without a hearing on February 22, 2016. 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.

Specifically, with respect to Claims 1-3, the AJ found that Complainant did not establish a prima
facie case of reprisal since TSM-1 denied knowing about Complainant’s prior EEO activity. The
AJ said that Complainant’s reprisal claim rested on his unsubstantiated belief that all managers
had been informed of his prior EEO activity. Consequently, the AJ concluded that Complainant
could not establish a causal nexus between the challenged employment actions and his protected
activity.

Further, with respect to Claim 1, the AJ found that TSM-1 articulated a legitimate,
nondiscriminatory reason for charging Complainant with LWOP on June 10, 2013. The record
establishes that on May 18, 2013, Complainant applied for Annual Leave for June 15 and June 16,
2013. His request was denied because “the calendar was full,” but the AJ noted that Complainant
was permitted to take a half day of annual leave on June 15.
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Additionally, the AJ found that Complainant requested LWOP, and not annual leave, and that he
failed to prove that his LWOP request was at TSM-1’s direction, which TSM-1 stated he does not
recall giving.

With respect to Claims 2 and 3, the AJ found that TSM-1 articulated a legitimate,
nondiscriminatory reason for his actions against Complainant, which Complainant failed to show
was pretextual. According to the record, TSA employees are required to have active SIDA badges
to work at the Charlotte airport; an employee’s badge expires on his birthday; and the employee is
required to renew his badge before it expires. The AJ found that Complainant came to work on
June 25, 2013, with an expired badge, TSM-1 marked him AWOL for 2.15 hours, the time it took
to process the paperwork to renew the badge, and TSM-1 had a Letter of Counseling issued
pursuant to Management Directive 1100.73-2 for failure to be in proper uniform which included
an active SIDA badge.

Regarding Claims 4 and 5, the AJ found that Complainant did not prove management’s actions
were retaliatory. The record reflected that on October 9 and 22, 2013, STSO-2 directed
Complainant to perform alarm audits. Although STSO-2 is not Complainant’s supervisor, the AJ
found that STSO-2 had been assigned to supervise the red and white zones of the baggage area,
where Complainant was assigned to work the red zone, and that he requested Complainant perform
the red zone alarm audits so he could focus on the alarm audits in the white zone. The AJ noted
that Complainant stated he told STSO-2 that it was not his job to perform the alarm audits even
though he admitted in the investigation that alarm audits are the shared task of the STSO and the
LTSO. STSO-2 reported the incident to Complainant’s supervisor STSO-1.

The AJ further noted that on October 22, STSO-2 again needed Complainant’s assistance in
performing alarm audits because he was covering the red, white, and blue zones, and requested
that Complainant perform the two alarm audits for the white zone that day. The record indicated
that Complainant questioned why he had to do the STSO job when no one performed his LTSO
job, and that STSO-2 reminded Complainant that the alarm audits are a shared leadership
responsibility between STSOs and LTSOs. In the record, STSO-2 stated that Complainant
ultimately did not perform the alarm audits so he reported Complainant’s refusal to TSM-2, who
directed STSO-2 to issue a Memorandum for Record to Complainant for failing to follow
instructions. The AJ concluded that even though STSO-2 and TSM-2 were aware of
Complainant’s prior EEO activity, Complainant failed to establish that management’s actions were
motivated by his protected conduct and not his non-performance.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure.

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The U.S. Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but
rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-
moving party must be believed at the summary judgment stage and all justifiable inferences must
be drawn in the non-moving party’s favor. Id. at 255. 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.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal
No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of
the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).

The Commission finds that the AJ properly resolved Complainant’s issues without a hearing
because there were no disputed issues of material fact warranting a hearing. The Commission also
finds no error in the decision finding no reprisal. Significantly, with respect to Claims 1-3,
Complainant did not rebut TSM-1’s claim that he had no knowledge of Complainant’s prior EEO
activity when he granted Complainant’s LWOP request, charged him as AWOL for the expired
badge, and issued a nondisciplinary Letter of Counsel regarding employee’s uniform requirements.
Consequently, in the absence of the manager’s knowledge, Complainant cannot establish a prima
facie case of reprisal or causation. Moreover, Complainant failed to show that management’s
reasons for its actions were pretextual.

Additionally, the Commission finds no legal error in the AJ’s analysis of Claims 4 and 5. The
record contains Agency policies that substantiate management’s actions. Specifically, the policies
indicate that STSOs and LTSOs share the responsibility of performing alarm audits, a STSO is
authorized to direct a LTSO to perform alarm audits, and that employees generally are to respond
promptly to and fully comply with direction and instruction received from their supervisor or other
management officials.
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In that Complainant does not dispute that he refused to perform the alarm audits even though he
knew it was a shared task, we find no basis for concluding that Complainant’s protected activity
motivated STSO-2’s requests or the Memorandum for Record.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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).

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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. 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

September 18, 2018
Date