EEOC Appeal 2020001873

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Damion M.,1
Complainant,
v.
Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 2020001873
Agency No. HS-TSA-00199-2019
DECISION
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 November 22, 2019, 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 Senior Federal Air Marshal for the Agency
in Chicago, Illinois.
On December 26, 2018, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency discriminated against him based on race (Hispanic) and national origin (Mexican).
By letter dated February 12, 2019, the Agency accepted the formal complaint for investigation and
determined that it was comprised of the following claim: on October 27, 2018, management made
constant and persistent reference to Complainant’s perceived East LA (Los Angeles) accent.
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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After an 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. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
In the final decision, the Agency found that Complainant failed to prove that the Agency subjected
him to discrimination as alleged. Specifically, the Agency found that the unwelcome comments
did not unreasonably interfere or create a hostile work environment.
Complainant filed the instant appeal. On appeal, Complainant asserts that he presented sufficient
evidence to establish that he was subjected to a hostile work environment. 	In addition,
Complainant asserts that he presented direct evidence of disparate treatment. 	Complainant also
asserts that the Agency failed to conduct a disparate impact analysis in its final decision.
Complainant’s Brief at 9-10.
In response, the Agency requests that we affirm its final decision finding no discrimination.
ANALYSIS AND FINDINGS
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”).
We find that the Agency properly used a hostile work environment analysis with respect to the
instant matter. Complainant has not alleged that a specific policy or practice, while neutral on its
face, had a disproportionate impact upon members of the protected class through the presentation
of statistical evidence (disparate impact claim). 	In addition, Complainant has not challenged a
discrete personnel action (disparate treatment). 	Rather, Complainant alleges that a member of
management made unwelcome comments to him regarding his accent.
Complainant alleges that during a mission briefing, a Supervisory Federal Air Marshal (S1), asked
him where he was from and that Complainant responded the South side of Chicago. Complainant
asserts that S1 stated that Complainant had an East LA accent and took him for a “Hey Vato” type
of guy. Report of Investigation (ROI) at 64. Complainant asserts that “Vato” is a Hispanic term
with a negative connotation and can make reference to a gang member. ROI at 66. Complainant
asserts that S1 then stated that Complainant reminded him of the movie “Born in East LA” where
the main character gets deported. Id. Finally, Complainant asserts that S1 kept saying that he was
shocked Complainant was from Chicago because he had an East LA accent. ROI at 65.

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The record contains affidavits from several of Complainant’s co-workers who attended the
meeting in question and corroborate Complainant’s statements regarding the comments by S1. For
example, one co-worker (C1) stated “when [S1] made the “Hey Vato” comment to Complainant,
he appeared to be mimicking a Latino accent. [S1] then stated that Complainant’s accent was like
a “Chong” movie where he gets deported which I believed was a reference to a Cheech and Chong
movie. Someone else in the room stated that the name of the movie was “Born in East LA.” After
these comments…I looked over at Complainant and he appeared uncomfortable…, he looked
around the room at everyone and then down at the ground and it appeared to me he was
humiliated.” ROI at 73. C1 asserts that he later wrote a statement at Complainant’s request and
left the copy in a sealed envelope in Complainant’s mailbox.2 ROI at 74.
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment." Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). 	The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Even assuming, without finding, that S1’s comments were sufficiently severe or pervasive to
create an abusive working environment, we find that Complainant has not established that there is
a basis for imputing liability to the Agency. The standard for employer liability for hostile work
environment harassment depends typically on whether or not the harasser is the victim's
supervisor. An employer is vicariously liable for a hostile work environment created by a
supervisor. In Vance v. Ball State Univ., 133 S. Ct. 2434 (2013), the Supreme Court held that an
employee is a “supervisor” if the employer has empowered that employee “to take tangible
employment actions against the victim, i.e., to effect a “significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.”' The Court stated that an employer is liable
for hostile work environment harassment by employees who are not supervisors if the employer
was “negligent in failing to prevent harassment from taking place.” In assessing such negligence,
the Court explained, “the nature and degree of authority wielded by the harasser is an important
factor to be considered in determining whether the employer was negligent.”
2 S1 asserts, in his affidavit, that he received a witness statement by C1 under his door and he does
not know who left it there. ROI at 94. On appeal, Complainant asserts that he never received C1’s
statement and that S1 or someone acting under his direction must have “stole Complainant’s
private mail, opened the sealed envelope, and read the contents inside.” Complainant’s Brief at 4.
However, we find the record is devoid of evidence to support Complainant’s assertion.

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Also relevant is “[e]vidence that an employer did not monitor the workplace, failed to respond to
complaints, failed to provide a system for registering complaints, or effectively discouraged
complaints from being filed.” See Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisor Notice Concerning the Supreme Court’s Decision in Vance
v. Ball State University, 133 S. Ct. 2434 (2013).
Complainant, however, has not established that S1 was a supervisor who was empowered to take
tangible employment actions against him. 	In his affidavit, 	S1 asserts that he is a Supervisory
Federal Air Marshal. S1 states, however, that he has never supervised Complainant. ROI at 91-
92. 	The record is devoid of evidence that S1 had authority to take tangible employment action
against Complainant. 	In addition, Complainant, in his affidavit, lists others managers (not S1)
who are in his chain of command. ROI at 64.
Moreover, when management became aware of the comments, it took prompt corrective action.
Therefore, we find that there is no basis for imputing liability to the Agency. The record reflects
that after learning of Complainant’s allegations, 	management instructed S1, to have no more
contact with Complainant unless operationally necessary. ROI at 135. The record contains a cease
and desist directive to S1 from an Acting Supervisory Air Marshal in Charge dated November 15,
2018. ROI at 143-144. The record reflects that an investigation was conducted. ROI at 120-123.
Specifically, the record reflects that S1 was issued a Letter of Reprimand regarding the comments
at issue on March 7, 2019 by the Unit Chief, Professional Responsibility. ROI at 95, 104-107.
Based on the foregoing, even assuming, without finding, that Complainant was subjected to severe
or pervasive conduct which created an abusive work environment, we find that Complainant has
not established a basis for imputing liability to the Agency.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration.

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A party shall have twenty (20) calendar days from receipt of another party’s request for
reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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.

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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
October 28, 2020
Date