U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Horace L.,1
Complainant,
v.
Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120181853
Agency No. HS-TSA-01009-2017
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 30, 2018, 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. For the following reasons, the Commission VACATES the Agency’s final
decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal
at the Agency’s Seattle Field Office in Renton, Washington. Complainant initiated the instant
EEO complaint on February 28, 2017, and on June 14, 2017, he filed an EEO complaint alleging
that the Agency discriminated against, and harassed him, on the basis of national origin (Hispanic)
when:
1. on or about February 23, 2017, management placed him on Non-Mission Status
(NMS);
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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2. on or about February 23, 2017, he was issued an Incident Tracking Report for
failing to follow orders on or about October 2016;
3. on or about February 23, 2017, he was directed by management to remove the
confidentiality and medical warnings from his email signature block;
4. on or about February 23, 2017, after Complainant requested sick leave, his gun and
credentials were taken from him;
5. on or about February 23, 2017, management removed him from team leader and
assistant team leader positions, from both domestic and international missions;
6. on or about February 24, 2017, management denied his sick leave request;
7. on or about February 24, 2017, management spoke to Complainant about not
submitting an NMS plan in a timely manner;
8. on or about February 24, 2017, management informed him that his peers would be
evaluating and reporting his performance to his immediate supervisor until the end
of the 2017 performance rating period;
9. on or about February 24, 2017, a management official bent over him, raised his
voice, and asked, “how long have you been here?”;
10. on or about February 24, 2017, management denied his request to provide his
personal notes;
11. on or about February 26, 2017, a coworker informed him that management asked
his coworkers to watch his activities and report back to management;
12. on or about March 1, 2017, management told him that the next 2-3 weeks would
determine whether Complainant would be placed on a performance improvement
plan; and
13. on or about March 1, 2017, during an open forum, management singled him out
and asked, “[Complainant], do you have any questions?”
Complainant also alleged that he was retaliated against for filing the instant complaint
when:
14. on or about March 9, 2017, management asked him questions about his harassment
claims;
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15. from February 16, 2017, through March 22, 2017, management denied his requests
to prepare his NMS at the airport;
16. on or about April 27, 2017, during his mid-year review for FY17, management
commented that he did not follow proper protocol and chain of command, and did
not communicate effectively; and
17. on or about October 20, 2017, management issued him his FY17 performance
review, which implied that he failed to utilize his chain of command during the first
half of the reporting period.
On December 29, 2017, at the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge. On January 26, 2018,
Complainant informed the Agency that he was “reluctantly” requesting a final decision, after he
had notified them of deficiencies in the ROI. On February 9, 2018, the Agency issued a second
ROI, which contained four (4) additional witness statements. In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the
Agency concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant filed the instant appeal and submitted a statement in support of his appeal on May
11, 2018. Among other things, Complainant argues that the Agency provided a deficient ROI.
Complainant states that he contacted the Agency on January 12, 2018, to inform them that the ROI
was deficient. Complainant states that he was aware that witnesses were contacted after he was
provided the deficient ROI, and that the Agency failed to send him a complete version.
Complainant asserts that, to date, the Agency has not provided him with a copy of the complete
ROI.
The Agency did not submit a response brief.
ANALYSIS AND FINDINGS
Standard of Review
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 Chap. 9,
§ VI.A. (Aug. 5, 2015) (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
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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”).
EEOC regulations state that an agency is to provide the complainant with a copy of the
investigative file and notify the complainant of his right to request a hearing or a final decision
from the agency within 30-days of receipt of the investigative file. 29 C.F.R. § 1614.108(f).
Complainant states that he never received a copy of the second ROI, issued on February 9, 2018.
The Agency did not assert, nor provide any evidence showing, that it sent Complainant a copy of
the second ROI. We find that the Agency has not complied with the Commission’s regulation
because it did not send Complainant a copy of the second ROI, and it failed to provide Complainant
with the right to request a hearing or a final decision after having an opportunity to review the
second ROI. As such, we VACATE the Agency’s final decision,2 and REMAND the matter back
to the Agency, in accordance with the ORDER below.
CONCLUSION
We find that the Agency did not properly provide Complainant a copy of the second ROI.
Therefore, based on a thorough review of the record and the contentions on appeal, including those
not specifically addressed herein, we VACATE the Agency’s final decision dated March 30, 2018,
and REMAND the matter to the Agency to comply with the ORDER below.
ORDER
The Agency is ordered to take the following action:
I. Provide a copy of the second investigative file, issued on February 9, 2018, to
Complainant within 30 calendar days of the date of this decision is issued.
II. Notify Complainant of the appropriate rights to request a hearing before an EEOC
Administrative Judge or an Agency final decision, within 30 calendar days of his
receipt of the second investigative file.
III. If Complainant requests a final decision without a hearing, the Agency shall issue
a final decision within 30 calendar days of receipt of Complainant’s request.
2 We note that the Agency’s final decision stated that it is based on a review of the “full
investigative file,” and cites to the second ROI.
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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.
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency or filed your appeal with the
Commission. 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. 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
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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
July 19, 2019
Date
