Don S.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Apr 5, 2017

0120160883 (E.E.O.C. Apr. 5, 2017)

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

Don S.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120160883

Agency No. HS-TSA-01349-2014

DECISION

On December 23, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s November 25, 2015, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. Our review
is de novo. 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 part-time
Transportation Security Officer at Hobby Airport in Houston, Texas.

On October 9, 2014, Complainant filed an EEO complaint wherein he claimed that the Agency
subjected him to a hostile work environment and discriminated against him on the bases of his
race (African-American), sex (male), age (49), and in reprisal for his prior protected EEO
activity under Title VII and the ADEA when:

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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1. On November 1, 2013, the Agency changed Complainant’s work schedule;

2. Beginning November 18, 2013, Complainant received only 56 hours of training
while other Transportation Security Officers received approximately one month of
training;

3. From December 1, 2013 to December 21, 2013, the Agency changed
Complainant’s schedule to correspond with his mentor’s schedule;

4. Beginning December 1, 2013, Complainant’s mentor was assigned to another lane
and Complainant was mentored by whomever was available;

5. On March 20, 2014, the Transportation Security Manager denied Complainant’s
request for annual leave on March 22, 2014;

6. On March 27, 2014, the Transportation Security Manager notified Complainant that
he was going to write him up for insubordination because Complainant called in
sick on March 22, 2014;

7. On April 17, 2014, the Transportation Security Manager suspended Complainant
for one day, to be served on April 18, 2014; and

8. On or about April 21, 2014, Complainant resigned because of the hostile work
environment.

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). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that he was subjected to
discrimination as alleged. With regard to claim (1), the Agency stated that Complainant
claimed that management did not change the schedules of a younger Transportation Security
Officer and a Hispanic Transportation Security Officer who both transferred to Houston with
him. According to the Training Specialist, these two comparisons had already been
checkpoint-certified, unlike Complainant, and therefore did not need to take this training or
have their schedules changed. The Agency stated that the Scheduling Operations Officer
changed Complainant’s schedule to accommodate the required training after he was notified of
the checkpoint certification training times.

As for claim (2), the Agency stated that management denied that Complainant received less
training than other Transportation Security Officers. The Training Specialist asserted that
Complainant successfully completed 84 hours of on-the-job training and that as of January 3,
2014, Complainant was fully certified on the x-ray machine and as a checkpoint officer. The
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Agency noted that Complainant never complained about not receiving training. The Agency
stated that the Expert Security Training Instructor and the Master Security Training Instructor
both denied Complainant’s claim that they attempted to have Complainant fail testing, and the
Expert Security Training Instructor denied that she gave Complainant incomplete instruction
before tests.

With respect to claim (3), the Agency asserted that it changed Complainant’s work schedule in
order to ensure that it would match his mentor’s schedule. According to the Scheduling
Operations Officer, the mentors maintained their schedules and the employee being mentored
went to them for on-the-job training. As to claim (4), the Agency noted that the Training
Specialist denied being aware that Complainant’s mentor was reassigned away from
Complainant.

With regard to claim (5), the Agency stated that on March 8, 2014, Complainant filed a
request for annual leave on March 22, 2014. The Agency asserted that the Transportation
Security Manager denied Complainant’s leave request on March 11, 2014, because the leave
chart revealed that the maximum number of employees had already requested leave for March
22, 2014. The Agency noted that Complainant claimed that he believed that his leave request
predated other leave requests. The Agency rejected this argument.

With regard to claim (7), the Agency stated that Complainant was issued a one-day suspension
due to his unprofessional response to the Transportation Security Manager’s denial of his
annual leave request, and his unprofessional conduct when he confronted the Transportation
Security Manager after the denial of the annual leave request. According to the Transportation
Security Manager, Complainant came into his office and said he was going to take the day off
he requested despite the denial, and subsequently declared while leaving the office that they
would deal with the situation when he returned from his leave. The Agency stated that the
notice of suspension also included Complainant’s improper use of sick leave as Complainant
improperly requested sick leave for March 21 and 22, 2014, after his request for annual leave
on March 22, 2014, was denied.

As for claim (8), the Agency observed that Complainant contended he was forced to resign
from the Agency because: (1) he did not feel safe going back to his position at the airport; (2)
he did not trust management at the airport; (3) management did not follow protocol regarding
suspension procedures; and (4) management was continually attempting to find cause to
terminate him. The Agency rejected Complainant’s constructive discharge claim. The Agency
determined that Complainant failed to demonstrate that it subjected him to intolerable working
conditions compelling a reasonable person to resign. The Agency maintained that
Complainant’s resignation was voluntary.

With regard to Complainant’s harassment claim, the Agency determined that even if the
incidents at issue occurred as alleged, they did not rise to the level of severity and
pervasiveness so as to constitute harassment. The Agency further stated that the record did not
contain evidence demonstrating that any of the alleged actions were motivated by a
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discriminatory or retaliatory intent. The Agency addressed claim (6) in this portion of its
decision noting that Complainant claimed that the Transportation Security Manager threatened
him with a disciplinary write-up for insubordination. According to the Transportation Security
Manager, he called in Complainant after he returned from his unauthorized leave and asked
him to explain his conduct on March 13, 2014, and Complainant offered no explanation.

CONTENTIONS ON APPEAL

On appeal, Complainant contends as to claim (1) that he was the only Transportation Security
Officer with such a fluctuation in schedule. With respect to claim (2), Complainant states that
the Agency did not provide any documentation to show any other officers who obtained
remediation training and were retested on the same day to prove he was not the only officer
who received such treatment. In terms of claims (3-4), Complainant argues that he did not
receive the quality of on-the-job training he was entitled to and that the Agency offered no
relevant response to its deviation from protocol. As for claim (5), Complainant maintains that
the Agency did not deliver his leave request in a timely and appropriate manner. With regard
to claims (6-7), Complainant contends that the Agency offered no evidence to disprove his
proper use of Family and Medical Act leave. Complainant points out that he was paid for the
three days he was sick and the Agency did not seek reimbursement for the alleged
unauthorized leave. With respect to claim (8), Complainant maintains that he resigned because
he no longer believed he was in a safe work environment.

In response, the Agency asserts as to claim (1) that at the time of Complainant’s transfer from
Miami to Houston, he was certified to work in baggage screening, but not passenger
(checkpoint) screening. The Agency states that Complainant’s schedule was therefore
temporarily adjusted to accommodate his training requirements. The Agency notes that the
comparisons named by Complainant both were already certified in passenger screening. With
respect to claim (2), the Agency maintains that Complainant was not denied any training and
that he received all training materials and modules. The Agency asserts that Complainant
received the same training that the other trainees received. In terms of claim (3), the Agency
states that the schedules of trainees sometimes needed to be adjusted to match those of the
mentors. The Agency states that is what occurred with regard to Complainant’s schedule
change. With respect to claim (4), the Agency maintains that neither the Training Specialist
nor the Scheduling Operations Officer was aware that Complainant was trained by anyone
other than his original mentor. The Agency argues that the change of a mentor during on-the-
job training did not cause Complainant to suffer a harm or loss to a term, condition, or
privilege of his employment.

As for claim (5), the Agency explains that there are a limited number of Transportation
Security Officers who can take leave on any given day. The Agency asserts that the maximum
number was reached for leave requests for March 22, 2014, when Complainant presented his
annual leave request. With regard to claim (6), the Agency states that the Transportation
Security Manager gave Complainant an opportunity to explain his actions on March 13, 2014,
when Complainant spoke to the Transportation Security Manager in an agitated, rude,
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disrespectful, and unprofessional manner. The Agency notes it was that conduct, combined
with Complainant’s improper use of sick leave that led to the one-day suspension at issue in
claim (7). With respect to claim (8), the Agency states that Complainant’s resignation letter
did not provide a reason for his resignation.

The Agency asserts that Complainant cannot establish a prima facie case of race, sex, or age
discrimination with regard to claims (1-5) and (7) because he lacks a non-African-American,
non-male, or substantially younger comparison who was treated more favorably under similar
circumstances. The Agency further argues that Complainant cannot set forth a prima case of
reprisal as to the same claims since the responsible management officials in Houston were not
aware of his prior EEO activity in 2010 and 2012, when he was employed in Miami.

Assuming arguendo Complainant set forth a prima facie case of discrimination on the alleged
bases, the Agency asserts it that provided legitimate, non-discriminatory reasons for its actions.
The Agency maintains that Complainant cannot show that these reasons were pretext intended
to hide discriminatory motivation. With regard to Complainant’s hostile work environment
claim, the Agency argues that Complainant cannot demonstrate that he was subjected to severe
or pervasive conduct. Further, the Agency asserts that even if the conduct at issue could be
considered severe or pervasive, Complainant has failed to prove that the alleged harassment
was based on his race, age, sex, or prior EEO activity.

As to Complainant’s constructive discharge claim in claim (8), the Agency argues that changes
to work schedules that result in the employee incurring a hardship do not engender working
conditions so intolerable as to rise to the level of a constructive discharge. The Agency
maintains that Complainant cannot demonstrate intolerable working conditions or any of the
other elements of a constructive discharge claim.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally 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, 411 U.S. at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
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(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under each of the alleged bases with regard to each of his claims. As to claim (1), the Agency
explained that Complainant’s schedule was temporarily adjusted to accommodate his training
requirements as he needed to obtain checkpoint certification. With respect to claim (2), the
Agency maintains that Complainant received the same training as the other trainees as he was
not denied any training and that he received all training materials and modules. In terms of
claim (3), the Agency states that, as is the custom, Complainant as a trainee had his schedule
adjusted to accommodate to the schedule of his mentor. With regard to claim (4), the Agency
argues that the Scheduling Operations Officer and the Training Specialist were not aware that
Complainant was being assigned to other mentors besides his original mentor. The Agency
further argues that Complainant was not harmed by this change in mentors.

With respect to claim (5), the Agency asserts that Complainant’s request for annual leave was
denied because the maximum number of leave requests for March 22, 2014, had been reached
by the time Complainant submitted his request. As for claim (6), the Agency states that
Complainant acted in an insubordinate manner toward the Transportation Security Manager
after he denied his leave request and he subsequently offered no explanation for his
unprofessional conduct. In terms of claim (7), the Agency asserts that the one-day suspension
was issued because of Complainant’s conduct after he learned his leave request had been
denied and also due to his improper use of sick leave. With regard to claim (8), the Agency
maintains that Complainant voluntarily resigned his employment and that he was not subjected
to intolerable working conditions. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions.

Complainant attempts to establish pretext by arguing as to claim (1) that no other
Transportation Security Officer experienced such a fluctuation in schedule. However, this
contention does not account for the fact that the two comparisons, unlike Complainant, already
had received checkpoint training. We find that Complainant has not refuted the Agency’s
explanation for his schedule change. As for claim (2), Complainant claimed that he only
received 56 training hours and that he did not receive all of the training modules needed to
attain checkpoint officer certification. Complainant stated that he was rushed through training
so that he would fail the image test and be terminated. Complainant maintained that he failed
the image test on his first attempt because the trainer did not read aloud the entire instructions
prior to the testing. According to Complainant, his incomplete training affected his ability to
perform his job because he did not know how to operate certain machines.

The Training Specialist stated that Complainant successfully completed 84 training hours and
that he became certified on the x-ray machine. The record reflects that Complainant became
fully certified as a checkpoint officer as of January 3, 2014. The Training Specialist denied
shortening or altering Complainant’s training in any way, and also denied that she attempted to
terminate Complainant. The Training Specialist further denied engaging in preferential
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treatment of any of the named comparisons. The trainer who administered the image test
stated that she could not recall any reason why she would not have read the complete
instruction script. This trainer denied that she engaged in any acts designed to cause
Complainant to fail the test or lead to his termination. Upon review of the record, we find that
Complainant has not established that he was discriminatorily denied sufficient training to
successfully perform the duties of his Transportation Security Officer position.

With regard to claims (3-4), Complainant challenges the need for an adjustment of his schedule
and the quality of training that he received. We find that Complainant has not presented
evidence that contradicts the Agency’s position that it is customary for trainees to have their
schedules adjusted to fit with the schedule of their mentor. Complainant points out that his
scheduled mentor did not wind up training him and that instead he received sub-standard
training from several trainers. Although the record reveals that the scheduled mentor was
indeed reassigned to a different lane than Complainant was working, we discern no evidence
that this reassignment was effected with the intention of adversely impacting Complainant’s
training based on discriminatory motivation. We further find no persuasive evidence that
Complainant received sub-standard training from the trainers who replaced his scheduled
mentor.

Complainant argues as to claim (5) that the Agency did not efficiently process his request for
annual leave. However, we observe no persuasive evidence that refutes the Agency’s
explanation that the number of leave requests for the day in question, March 22, 2014, had
already reached a maximum number by the time that it received Complainant’s leave request.
With regard to claims (6-7), Complainant contends that he properly used Family and Medical
Act leave and the Agency did not seek repayment of his alleged unauthorized leave. The
record reveals that the incidents at issue in these claims concern Complainant’s disrespectful
and unprofessional conduct during his meeting with the Transportation Security Manager and
the one-day suspension that was issued subsequent to such conduct and Complainant’s alleged
improper use of sick leave. Complainant has not presented evidence that demonstrates his
conduct during his meeting with the Transportation Security Manager was anything other than
the negative description provided by management officials. It is also clear that Complainant
went ahead and used sick leave for March 22, 2014, after he was denied annual leave for that
date. We find that Complainant has not shown that the Agency’s articulated reasons were
pretext intended to hide discriminatory motivation.

Complainant claims that he was also subjected to harassment by management officials. To
establish this claim, Complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on his statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a
working environment is hostile, factors to consider are the frequency of the alleged
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discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if
it unreasonably interferes with an employee’s work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

We find no reasonable basis to conclude that Complainant was subjected to a hostile work
environment, as he has not established that any of the alleged Agency actions were severe or
pervasive such that a legally hostile work environment existed. Complainant’s harassment
claim is precluded based on the Commission’s finding that he failed to establish that any of the
actions taken by the Agency were motivated by discriminatory or retaliatory animus. See
Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000).

As to Complainant’s claim of constructive discharge, claim (8), the Commission has
established three elements which Complainant must prove to substantiate a claim of
constructive discharge: (1) a reasonable person in Complainant’s position would have found
the working conditions intolerable; (2) conduct that constituted discrimination against
Complainant created the intolerable working conditions; and (3) Complainant’s involuntary
resignation resulted from the intolerable working conditions. See Walch v. Department of
Justice, EEOC Request No. 05940688 (April 13, 1995). As noted above, Complainant failed
to provide any persuasive evidence to support his contention that he was subjected to a hostile
work environment based on his protected classes of sex, race, age and prior EEO activity.
Therefore, we find that Complainant has not established his claim of constructive discharge.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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:
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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
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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

April 5, 2017
Date