Trevor S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Law Enforcement Training Center), Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120172467 (E.E.O.C. Nov. 21, 2018)

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

Trevor S.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Law Enforcement Training Center),
Agency.

Appeal No. 0120172467

Agency No. HS-FLETC-26435-2016

DECISION

On July 14, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 16, 2017 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 period at issue, Complainant worked as a Branch Chief/Supervisor of the First
Responders Application of the Behavioral Science Branch (RAB), a subdivision of the
Behavioral Science Division (BSD) in Glynco, Georgia. Complainant’s first line supervisor was
the former BSD Division Chief (Caucasian)2 and his second line supervisor (Caucasian) was the
Deputy Assistant Director.

On August 11, 2016, Complainant filed a formal EEO complaint alleging he was subjected to
harassment/a hostile work environment on the basis of race (African-American). In support of
his claim, he alleged the following incidents:

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.

2 Complainant’s supervisor retired from Agency employment on December 31, 2016.
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1. On or around July 12, 2015, after his initial arrival to the Behavioral Science Division
(BSD) as the Branch Chief of the First Responders Application of Behavioral Science
Branch (RAB), the BSD Division Chief and Branch Chief of the Investigative
Application of Behavioral Science Branch met with Complainant and told him that
there were several employees in the BSD that did not want him there, that he needed
to take the time to learn about the people in BSD, learn how to talk to people, and
learn how to deal with people.

2. On several occasions, the BSD Division Chief verbally admonished and singled out
Complainant without providing full disclosure for the reasons. The BSD Division
Chief also kept Complainant uninformed regarding several issues concerning
Complainant and employees within his RAB office.

3. The BSD Division Chief allowed ongoing rumors and negative comments to persist
in the BSD, which demeaned Complainant’s credibility as a supervisor and employee,
and hindered his progression at FLETC.

4. Despite Complainant’s numerous requests, the BSD Division Chief failed to provide
him with details or names of employees within the BSD that allegedly complained
about his supervisory style and/or behavior.

5. The BSD Division Chief and the BSD Branch Chief continuously allowed
Complainant’s subordinates to circumvent his authority and position as a Branch
Chief, hindering Complainant’s ability to conduct business, complete assignments,
and work with his RAB staff.

6. The BSD Branch Chief did not allow Complainant to view negative text messages
about him that she had received from Complainant’s subordinate prior to the
subordinate’s transfer from FLETC.

7. The BSD management allowed staff members to promote hate and hostility toward
Complainant without taking appropriate action against the staff members based on
their unfounded claims and accusations.

8. The BSD Division Chief failed to provide Complainant with a copy of the findings of
an Internal Investigation/Fact-Finding regarding complaints made against
Complainant by BSD staff.

9. On or around January 27, 2016, the BSD Division Chief denied Complainant’s
request for overtime to review a GS-13 certification list.

10. On or around May 5, 2016, the BSD Division Chief failed to meet with Complainant
regarding the BSD Division Chief’s comments, that indicated that some members of a
BSD Working Group, led by Complainant, felt they were not “on the same page.”
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11. The BSD Division Chief and Branch Chief made allegations regarding Complainant’s
supervisory skills to the General Training Directorate, Assistant Director and Deputy
Assistant Director without giving Complainant an opportunity to address the issue or
provide his side of the issue.

12. On or about May 9, 2016, the BSD Branch Chief continuously tried to interfere with
the interview and hiring process for a GS-12 Term Instructor position within
Complainant’s RAB Branch.

13. On or around July 12, 2016, the BSD Division Chief denied Complainant’s request
for overtime to review 94 applications for a GS-12 position with RAD.

14. On or around July 27, 2016, Complainant found a flyer in his employee mailbox
stating, “Treat Employees Like They Make a Difference and They Will.”
Complainant asked the BSD Division Chief, Branch Chief, and his RAB staff, but no
one admitted to placing the flyer in his mailbox.

15. On November 2, 2016, his supervisor rated him low in several core competency areas
of his Performance Appraisal.

After its investigation of the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of the 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), on June 16, 2017, finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

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).

To prove his 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 his protected basis -- in this case, race. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.
Here, the evidence simply does not establish that the incidents alleged by Complainant occurred
because of his race.

Allegations 1 and 4
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Complainant asserted that on or around July 12, 2015, after his initial arrival to the Behavioral
Science Division (BSD), his supervisor (the BSD Division Chief) and the BSD Branch Chief met
with him. Complainant stated that the supervisor told him that there were several employees in
the BSD that did not want him there, that he needed to take the time to learn about the people in
BSD, learn how to talk to people, and learn how to deal with people. Complainant claimed that,
despite numerous requests, the supervisor failed to provide him with details or names of
employees within BSD that allegedly complained about his supervisory style and/or behavior.

The supervisor stated that from January 1, 2015 until Complainant’s arrival, for approximately 7
months, the BSD Branch Chief had been the only first-line supervisor for the entire BSD staff.
The supervisor stated that upon Complainant’s arrival, he asked the Branch Chief to assist him
and Complainant “in transitioning assignments and projects that now belonged in his Branch
back to his Branch because she had the up to date status of these assignments and projects.” The
supervisor also stated that he asked the Branch Chief to provide Complainant any information he
needed and to assist him with any questions he may have.

The supervisor stated that in late June 2015, the Branch Chief informed him that several
employees had a problem with Complainant and indicated she had told them to talk to the
supervisor about their concerns. The supervisor said no employees came to him at that time.
However, he said the FLETC’s Ombudsman did inform him that several employees had come to
her with concerns.

The supervisor explained that follow his meetings with the Branch Chief and Ombudsman, he
met with Complainant on July 10, 2015 “to explain my position on BSD operations and
staff/management engagement, which further dealt with my expectation of how I expected
management to engage staff and the [Complainant’s] transitioning of projects from the Branch
Chief to his.” The supervisor stated that between July 13, 2015 and July 16, 2015, he met with
each staff member individually who had gone to the Ombudsman with his or her concerns and
“assured them I would consider their requests made to the Ombudsman to either be moved from
[Complainant’s] Branch to [Branch Chief’s] Branch or transferred out of the BSD Division.”

The supervisor stated that after reviewing each individual employee’s request and justification
and “in the absence of any policy violations, I determined none were sufficient or mitigating
enough to warrant the transfers they had requested, and that absent stronger evidence for me to
transfer them would be detrimental to [Complainant’s] morale, the BSD management team, staff
morale as a whole and BSD’s operations. After coming to this conclusion, I chose not to
disclose any specifics as I was under the rule of confidentiality and that providing specifics about
the issue would compromise the integrity of the Ombudsman process although [Complainant]
insisted on several occasions of knowing the identity of the individuals. I repeatedly told him I
could not disclose their names.”

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Furthermore, the supervisor stated that he does not recall Complainant having a negative
response or objecting to his managerial direction. The supervisor stated, however, Complainant
“did ask me on several occasion[s] after he arrived in BSD if I wanted him in the Division to
which I responded ‘yes.’”

Allegations 2 and 3

Complainant alleged that on several occasions, the supervisor verbally admonished and singled
him out, without providing full disclosure for the reasons, and kept him uninformed regarding
several issues concerning Complainant and employees within his RAB office. Complainant
further alleged that the supervisor allowed ongoing rumors and negative comments to persist in
the BSD, which demeaned Complainant’s credibility as a supervisor and employee, and hindered
his progression at FLETC.

The supervisor stated, however, he recalled only one incident where he admonished
Complainant, and that this admonishment “was done verbally, privately and followed up by an
email summation. The admonishment involved two employees … [Instructor and Training
Technician].” The supervisor stated that Complainant acknowledged he had directed the
Training Technician to get the signature of the Instructor on her mid-year performance
evaluation. The supervisor explained that as the RAB Branch Chief, it was Complainant’s
responsibility to meet with the Instructor to discuss her performance and then have her sign the
performance appraisal.

The supervisor stated that during his discussion with Complainant privately in his office, he
informed Complainant that having the Instructor, a non-supervisor, obtain the Instructor’s
signature on her performance appraisal, “was not acceptable and not to do it again.” Moreover,
the supervisor stated “other than the information I provided above I don’t know what
[Complainant] is alleging.”

Complainant asserted that the supervisor allowed ongoing rumors and negative comments to
continue in BSD that demeaned Complainant’s credibility as a supervisor, and has hindered his
progression at FLETC. However, the supervisor stated that Complainant never spoke to him
regarding his concerns. The supervisor further stated “only once did [Complainant] make
reference to promotion to me in the context that he had reservations about putting in for the BSD
Division Chief when I retire. I encouraged him, as I did [Branch Chief] and others not to decide
prematurely but weigh it carefully and come to his own rational and personal decision when the
time comes.”

The Deputy Assistant Director, also Complainant’s second level supervisor (Supervisor 2), stated
that during his November 28, 2016 and December 9, 2016 meetings, Complainant described
what he called a “climate survey” that was conducted by the supervisor which he thought was
directed at him to enable his subordinates to go around him and complain. Supervisor 2 stated
that he explained to Complainant there were a lot of things he was asking the supervisor, “to do
this year so he would become more engaged with the Division.
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I had discussed this with [the supervisor] during the year, and he acknowledged that in
anticipation of his retirement at the end of 2016 he deliberately chose to step back and given the
Branch Chiefs more responsibility so there would be a smoother transition when he left. I think
that may have contributed to a leadership void that was filled by [Complainant] and [Branch
Chief] acting more independently than as a team and I asked [the supervisor] to reassert some
leadership during the Spring of 2016.”

Supervisor 2 stated that during the relevant period, he learned that several employees felt that
Complainant was “too strict, not willing to listen, and was a micromanager…so rather than allow
rumors and negative comments that demeaned [Complainant’s] credibility, I think [the
supervisor] did just the opposite. He gave every employee an opportunity to meet with him one-
on-one to discuss the division as a whole and to see if there was anything he needed to know
about or fix. [The supervisor] reported to me, the employees who were assigned to
[Complainant] were generally happy and were adapting to his style. There were a few minor
things he thought [Complainant] could try, like leaving a sign on his door if he needed to have a
closed door meeting, but otherwise [supervisor] determined that there was no widespread
unhappiness…[supervisor] has not done anything to hinder [Complainant’s] progression at
FLETC, he was in fact the recommending official when [Complainant] was selected as the
permanent Branch Chief in BSD and has tried to give appropriate advice and coaching to help
[Complainant] successfully navigate the challenges of being a supervisor.”

Allegation 5

Complainant asserted that the supervisor and the Branch Chief continuously allowed his
subordinates to circumvent his authority and position as a Branch Chief, hindering his ability to
conduct business, complete assignments, and work with his RAB staff.

The supervisor stated that there were several incidents where Complainant’s direct reports came
to him, “with an issue. In these cases I discussed the issues with [Complainant]. Aside from the
incidents articulated below, [Complainant] to my recollection has never made me aware of any
difficulty he was having completing assignments as it relates to the allegations in [claim 5]. We
have discussed from time to time the status of assignments. I have, when mitigating
circumstances arise, adjusted priorities and assignment deadlines to accommodate a present
situation usually after consultation with [Complainant], [Branch Chief] or both. In the 18 months
that I supervised [Complainant], there were only a few situations where I interacted with his
direct reports in my authority and position as Division Chief.”

Allegation 6

Complainant alleged that the Branch Chief did not allow him to view negative text messages
about him that she had received from Complainant’s subordinate prior to the subordinate’s
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transfer from FLETC. The text message allegedly concerned the employee’s disagreement with
his performance evaluation.

Allegation 7

Complainant alleged that BSD management allowed staff members to promote hate and hostility
toward Complainant without taking appropriate action against the staff members based on their
unfounded claims and accusations.

The supervisor stated that during the relevant period, he was unaware of any hate or hostility
expressed by BSD staff members towards Complainant.

Allegation 8

Complainant asserted that the supervisor failed to provide Complainant with a copy of the
findings of an Internal Investigation/Fact-Finding regarding complaints made against
Complainant by BSD staff. The supervisor denied that he had either requested or conducted an
internal investigation, and was unaware of any written findings of such an investigation.

Allegations 9, 13 and 15

Complainant alleged that on or around January 27, 2016, the supervisor denied Complainant’s
request for overtime to review a GS-13 certification list, on or around July 12, 2016, the
supervisor denied Complainant’s request for overtime to review 94 applications for a GS-12
position with RAD, and on November 2, 2016, the supervisor rated him low in several core
competency areas of his Performance Appraisal, respectfully.

The supervisor stated that he does not recall denying Complainant’s request for overtime to
review GS-13 certification list and to review 94 applications for a GS-12 position with RAD.
The supervisor further stated, “I checked the Time and Attendance records for this time period, I
had access to, and could not find where [Complainant] had requested or that I had denied
[Complainant] request for overtime.”

Furthermore, the supervisor stated that he had a conversation with Complainant concerning his
expectation concerning overtime and overtime justification and Complainant “felt I was denying
overtime when he asked me my position on staff overtime to complete recent lesson plan
assignments. As I told [Complainant] at the time, I did not tell him I would not approve
overtime but only asked his assessment that if overtime as approved how many of the lesson
plans assigned did he believe could be completed. I had conversations and followed up with
emails to be clear as to what my position was on overtime.”

Regarding Complainant’s performance appraisal, the supervisor stated that he asked
Complainant by email on September 6, 2016, for his input on his own performance prior to
rating him.
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The supervisor stated that he did not receive any input from Complainant, and rated
Complainant’s overall performance rating as “Exceeded Expectations” as his rater. The
supervisor stated that the Deputy Assistant Director concurred with the rating as the approving
official.

Allegation 10

Complainant asserted that on or around May 5, 2016, the supervisor failed to meet with him
regarding his comments, which indicated that some members of a BSD Working Group, led by
Complainant, felt they were not “on the same page.”

The supervisor stated that he was not sure what Complainant was referring to, but speculated that
it involved a working group developing a lesson plan for a training on “Managing Abnormal
Behaviors.” The supervisor stated that he sent a text to Complainant because “to merely make
him aware of a perceived disconnect between believing the lesson plan team was unified behind
his direction and the fact that may not be the case.” Further, the supervisor stated that after he
sent the text to Complainant, and his discussions with him, he purposely “left it to
[Complainant’s] discretion to handle the situation and lesson plan content within his supervisory
review. I informed the team that [Complainant] was the manager overseeing this assignment and
had the authority to direct content.”

Allegation 11

Complainant alleged that the supervisor and Branch Chief made allegations regarding his
supervisory skills to the General Training Directorate, Assistant Director and Deputy Assistant
Director without giving him an opportunity to address the issue or provide his side of the issue.

The supervisor stated that he was not sure what Complainant was alleging, but denied making
any allegation about Complainant’s supervisory skills to the General Training Directorate,
Assistant Director and Deputy Assistant Director.

Allegation 12

Complainant alleged that on or about May 9, 2016, the Branch Chief continuously tried to
interfere with the interview and hiring process for a GS-12 Term Instructor position within his
RAB Branch.

The supervisor acknowledged that the Branch Chief tried to assist Complainant with the hiring
process by doing a reference check on an applicant for the vacant GS-12 position. The
supervisor explained when he learned of the incident, he had discussions with Complainant and
the Branch Chief “about the particulars of the event, and I instructed [Complainant] to disregard
the reference check [Branch Chief] had conducted and to continue with the process of filling his
vacancy. I advised [Branch Chief] that as well intended as her action may have been her doing
the reference was unsolicited by [Complainant] and not to do it again.”
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Allegation 14

Complainant asserted that on or around July 27, 2016, he found a flyer in his employee mailbox
entitled, “Treat Employees Like They Make a Difference and They Will.” Complainant asked
the supervisor, Branch Chief, and his RAB staff, but no one admitted to placing the flyer in his
mailbox.

The supervisor stated that Complainant approached him about the subject flyer and asked him “if
he put the flyer in his mailbox or if I knew who had put it there. I told him no and did not know
who did. I made some inquiries of employees and could not discover who had placed the flyer in
[Complainant’s] mailbox. In looking at the flyer it did not appear to me discriminatory or to be
racially based.”

Supervisor 2 stated that the supervisor called him about Complainant’s concerns regarding the
flyer and “said it was in his mailbox and [Complainant] was offended. I asked [the supervisor]
what it said and when he told me I could not understand why it was offensive. I asked [the
supervisor] if he knew anything about it, like who did it or what. He said he made inquiries in
the division and was unable to determine who placed the flyer in [Complainant’s] mailbox. I
still have no idea who did it or why.”

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that his race played any role in the disputed incidents. As such, he cannot prove
motive – an essential element necessary to establish his claim of race-based harassment.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination concerning the instant complaint because
the preponderance of the evidence of record does not establish that discrimination occurred.

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.
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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).

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.
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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 21, 2018
Date