0120140250
05-20-2016
Walter W.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Walter W.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120140250
Hearing Nos. 510-2013-00119X; 510-2013-00266X
Agency No. HSTSA223932012
DECISION
On October 16, 2013, Complainant filed an appeal from the Agency's September 17, 2013, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUES PRESENTED
Whether the FAD properly found that Complainant was not subjected to discrimination on the bases of race (Hispanic);2 age (54), and reprisal for prior EEO activity when on March 9, 2012 he learned that he received a low score on his J-Band application; and that Complainant was not subjected to hostile work environment harassment in reprisal for prior EEO activity when, on July 13, 2012, the Supervisory Air Marshal issued him a negative mid-cycle review, and on August 29, 2012, he received a negative email from a different Supervisory Fire Air Marshal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal (FAM) at the Agency's Miami FAM Service Field Office in Miami, Florida. The following is a restatement of the facts of record:
In 2002, Complainant was hired by the Agency as a Federal Air Marshal. Since 2005, he has been assigned to the Miami field office. Complainant filed an EEO complaint in 2008 alleging that he was subjected to a hostile work environment by various management officials, including the head of the Miami Field Office, Special Agent in Charge (SAC). In May 2008, Complainant was terminated. He subsequently filed an appeal with the MSPB and was reinstated. Throughout the instant complaint, Complainant alleges that he believes he was retaliated against because his termination was overturned.
J-Band application process
Each year eligible I-Band FAMs are invited to apply for assessment in order to be able to compete for promotion to J-Band supervisory positions. Those who choose to participate complete an application detailing their relevant experience, and the candidate's applications are reviewed and rated in a two-part process: (1) an outside panel evaluation and (2) a field office SAC evaluation. The panel score and the SAC score each comprise 50% of a candidate's total score. For the panel portion, a three-member panel reviews the written material submitted by each candidate and assigns a score based solely on these materials. The panel members do not work in the same office as the candidates they rate. For the SAC portion, each SAC reviews his or her field office applicants. Unlike the panel, SACs consider not only the written materials, but also each candidate's performance and exhibited leadership in the workplace.
Both processes rate each applicant, between 1 and 7, on seven modules: Flexibility, Accountability, Interpersonal Skills, Partnering, Problem Solving, Written Communication, and Law Enforcement Proficiency. A rating of 1 is considered "minimally acceptable." A rating of 3 is considered "good." A rating of 5 is considered "very good." A rating of 7 is considered "outstanding." The panel and the SAC submit their scores independently to the FAM's business management office without any knowledge of the other's score. Prior to the beginning of the next promotion cycle, each candidate is made aware of his or her score and ranking, and when a vacant J-Band position is published, any candidate with an assigned score may bid on the advertised position. Candidates are not considered for positions they do not seek. The business management office creates a list of the 40 highest-ranked I-Bands who bid on any position, and this list is forwarded to the office where the vacancy exists. The candidates are listed in alphabetical order, and the selecting official is not informed of anyone's score or ranking. The "cutoff" score for each position is determined entirely by the number of FAMs who bid on the position. There is no way to determine, other than by bidding, whether one might be considered for a vacant position.
The J-Band evaluation process for the 2012 promotion cycle occurred in July 2011. Because of Complainant's MSPB appeal and military duty, he was allowed to submit an application in October 2011, later than most of the other applicants. Complainant's panel score was above-average at 42 out of 50. Although Complainant requested that he not be rated by the SAC of his assigned field office for fear that this SAC would score him lower based on his prior reinstatement, he was advised that it is standard procedure for all FAMs who submit J-Band applications to be rated by their own SAC. Complainant's SAC completed the rating and considered Complainant's education, experience, his personal knowledge of Complainant's contributions to the Miami FAM office, and Complainant's leadership skills -- the same factors used to evaluate all the J-Band applicants.
The SAC explained in detail why he rated Complainant as he did for each module and gave him a total score of 31 out of 50.3 The SAC based his score on how Complainant applied his knowledge, mastery of skills, and experience in a FAM setting. Complainant's overall ranking was 211 out of 477 applicants. Ultimately, Complainant never applied for any promotions to a J-Band position, and therefore was never considered for any positions.
Mid-cycle review
On July 12, 2012, the Supervisory Federal Air Marshal (S1) met with Complainant to give him his mid-cycle review and to discuss the review. S1 explained to Complainant that he believed Complainant had a disrespectful attitude towards management and that he needed to improve his attitude. No references to Complainant's EEO activity were made during this meeting.
Negative E-mail
On August 29, 2012, the FAM scheduling officer told another SFAM (S2) that Complainant had requested information about an incident regarding his supervisor, allegedly falling asleep on a mission. According to the scheduling officer, Complainant asked him who his supervisor had flown with on the date in question. S2 sent Complainant an e-mail explaining that Complainant was not authorized to conduct an investigation into the matter.
On April 2, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against as articulated in the statement of "Issues Presented" above. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request, asking that the matter be resolved by the Agency issuing a FAD. Consequently, 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.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission reverse the Agency's FAD finding no discrimination. Complainant contends that he established through testimonial evidence that his race, age, and prior EEO participation were factors in lowering his J-Band score. Complainant argues that his significantly lowered score effectively rendered him unable to successfully compete for a J-Band position which is why he did not apply. Additionally, Complainant contends that the negative rating was used to harass and intimidate him, and prohibit him from continuing to pursue his EEO complaints against his supervisors.
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 Chapter 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 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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII or ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on national origin, age, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for Complainant's J-Band rating, and his failure to be selected for any J-Band position. As articulated in the "background" section above, both the SAC score and the panel score were determined by utilizing the methods prescribed in the J-Band application process. Additionally, the record reflects that Complainant was ultimately not selected for a J-Band position because he declined to compete for any position, opining that his score was too low. We find that Complainant failed to demonstrate that any conduct on the part of the Agency with respect to his J-Band score was based on discriminatory animus.
Likewise, we find that Complainant failed to establish pretext or discriminatory animus with respect to the Agency's legitimate non-discriminatory reasons for the comments made during his mid cycle review and the email that he was sent explaining that he was not authorized to conduct an investigation into his supervisor's conduct.
Hostile Work Environment/Harassment
With respect to Complainant's contention that he was subject to a hostile work environment with respect to the matters set forth in his complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly found that Complainant failed to demonstrate he was subject to discrimination on the bases of national origin (Hispanic); age (54), and reprisal for prior EEO activity when on March 9, 2012, he learned that he received a low score on his J-Band application; and that Complainant was not subjected to hostile work environment harassment in reprisal for prior EEO activity when on July 13, 2012, the Supervisory Air Marshal issued him a negative mid-cycle review, and on August 29, 2012, he received a negative email from a different Supervisory Fire Air Marshal. Therefore, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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. 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
___5/20/16_______________
Date
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 The Commission views the term "Hispanic" to be an indication of national origin, not race. Therefore, the decision herein shall examine whether Complainant established that he was discriminated against, among other things, because of his national origin.
3 (1) Flexibility, Complainant was given a 5 ("very good") because he made suggestions while working as a FAM and was flexible with schedule changes; (2) Accountability, Complainant was given a 4 (between "good" and "very good") because he generally achieved goals on time, but sometimes required more guidance than others; (3) Interpersonal Skills, Complainant was given a 3 ("good") because his performance in that area was average, and he experienced some difficulty in working well with others; (4) Partnering, Complainant was given a 5 ("very good") because he was proactive in seeking out information to meet critical mission goals; (5) Problem Solving, Complainant was given at 4 (between "good" and "very good") because he was capable of using sound judgment in making complex decisions, but required more guidance than most FAMs; (6) Written Communication, Complainant was given a 6 ("very good") because he was an above-average writer; (7) Law Enforcement Proficiency, Complainant was given a 3 ("good") because he performed his duties in a satisfactory manner, but had not shown leadership in sharing his experience or using his skills to report out of the ordinary observations while on duty.
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