Adell M.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Oct 19, 2020

2019005900 (E.E.O.C. Oct. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adell M.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019005900 Hearing No. 480-2016-00808x Agency No. HS-TSA-24080-2015 DECISION On September 21, 2019, Complainant filed an appeal2 with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 12, 2019 final order concerning her 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 AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Inspector (TSI), H-Band/Series 1801, at the Agency’s Honolulu International Airport 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 On September 5, 2019, the EEOC Administrative Judge (AJ) assigned to the matter issued a notice of proposed summary judgment. Complainant then prematurely filed an appeal with the Commission before the AJ issued the summary judgement decision and prior to the Agency issued a final order. The Agency has since issued a final order implementing the AJ’s summary judgment decision curing the defect. 2019005900 2 (HNL) in Honolulu, Hawaii. The Supervisory TSI-Cargo was Complainant’s first level supervisor (S1) and the Assistant Federal Security Director was her second-level supervisor (S2). On April 26, 2015, S1 referred one of Complainant’s inspection reports to STSI-Aviation because Complainant stated that it was an Aviation matter, quoted STSI-Aviation, and it involved the Agency’s Security Program and an Airport Security Directive. STSI-Aviation supervised Aviation and was the local Subject Matter Expert on Aviation Security. Complainant alleged that on May 11, 2015, STSI-Aviation rejected her inspection twice and he reviewed her report with heightened scrutiny. STSI-Aviation met with Complainant and discussed the inspection report. Ultimately, STSI-Aviation approved and submitted the report as drafted by Complainant, with two minor changes - removal of reference to an outdated security directive and changing the word “secured” to “sterile.” On August 5, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of reprisal for prior protected EEO activity when: 1. On May 11, 2015, STSI-Aviation, who was not Complainant’s supervisor, was assigned to review Complainant’s work product. The Complainant further alleged STSI-Aviation reviewed the work with heightened scrutiny unlike the work of Complainant's coworkers. 2. On May 11, 2015, the Complainant alleged that S2 encouraged STSI-Aviation to “treat Complainant's work product unfairly and with heightened scrutiny” than that of the Complainant's coworkers.3 During the investigation, Complainant raised additional incidents as part of the same hostile work environment and the investigator further investigated these incidents. For example, Complainant alleged that management withheld her five-year federal service recognition and pin. Complainant stated she did not receive her federal service recognition and pin until April 2013, almost one year after her five-year anniversary of federal service. Complainant alleged S2 caused the delay because of Complainant’s complaint against another supervisor. S2 stated she is advised by Human Resources when the awards and pins arrive in the office but does not remember when Complainant’s recognition pin arrived in the office or how it was given to Complainant. Additionally, Complainant challenged her Fiscal Year (FY) 2015 performance appraisal. Complainant alleged that on October 23, 2015, S1 showed Complainant her initial FY2015 performance ratings, which included six ratings of “4” and three ratings of “3” for an overall average of 3.656 and “Exceeded Expectations.” Complainant informed S1 that she believed she deserved all “4s” on her performance rating. 3 On August 20, 2019, the AJ issued an Order Denying Complainant’s Motion to Amend for containing untimely claims of discrete acts that occurred prior to April 14, 2015 (the 45-day counselor contact date) and for failure to state a claim regarding a claim that arose out of an attempt at mediation. 2019005900 3 S1 said she would review and consider any additional documentation to justify raising Complainant’s ratings. After reviewing Complainant’s submitted documentation, S1 raised one of the ratings to a “4” resulting in seven ratings of “4” and two “3s” for an overall average of 3.723 and “Exceeded Expectations.” S2 signed off on the performance review. Complainant alleged S2 caused the issuance of “3s” in her appraisal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before EEOC AJ. Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a Notice of Proposed Summary Judgement. On October 8, 2019, the AJ issued a summary judgment decision finding the record was adequately developed for summary disposition, and that there was no genuine dispute of material fact. In the decision, the AJ found that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence that the conduct at issue was based on retaliatory animus. For example, the record revealed that only one of Complainant’s inspections was sent to STSI-Aviation, they met and discussed it, and STSI- Aviation ultimately submitted it essentially as she had drafted it. The referral of Complainant’s report to STSI-Aviation did not cause Complainant any actionable harm since the report was submitted as Complainant had proposed and there was no evidence of “heightened scrutiny.” Next, with respect to the additional claims investigated, the AJ determined that Complainant only speculated that S2 caused her original appraisal to include “3s” and no evidence was submitted showing similarly situated TSIs were treated more favorably. Additionally, S1 explained that Complainant’s issues with performing a special assignment as an inquiry officer for a human resources case towards the end of the fiscal year was taken into consideration in the appraisal ratings. With regard to the issuance of the federal service pin, the AJ found the pin did not confer any concrete benefit to an employee, the delay in its issuance to Complainant did not cause any concrete harm and there was no evidence of retaliatory motive for the delay. The AJ found that there was no evidence in the record aside from her own contentions that the alleged incidents were based on retaliatory animus. As a result, the AJ found that Complainant was not subjected to reprisal or a retaliatory hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2019005900 4 In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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). Therefore, to prove her harassment claim, Complainant must establish that she 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 her prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The two accepted instances of alleged hostile work environment raised in the complaint, occurred on the same day. As explained above, S1 referred Complainant’s report to STSI-Aviation because it concerned Aviation, the program which he supervised, and he was the local Subject Matter Expert. He reviewed and sent Complainant his comments and concerns, they met and discussed the report, and STSI-Aviation submitted the report as drafted by Complainant. There is no evidence in the record aside from Complainant’s allegations that S2 encouraged STSI-Aviation to review her work unfairly and with heightened scrutiny. 2019005900 5 As noted above, Complainant raised additional incidents during the investigation which the AJ addressed as part of Complainant’s hostile work environment claim. For example, with regard to Complainant’s FY2015 performance appraisal, S1 raised one “3” to a “4” after reviewing additional documentation submitted by Complainant. S1 did not find Complainant’s Continuing Legal Education classes relevant for raising Complainant’s other two “3” ratings. ROI at 109-110. S1 considered Complainant’s performance and achievements for FY2015, including her rejection of a special assignment to be an inquiry officer for a human resources case, a collateral duty where TSIs were assigned administrative inquiries to assist management and took precedence over normal duties. Id at 89. Complainant’s rejection of the assignment was considered when S1 rated Complainant “3” in “Flexibility” and “Workforce Engagement.” Regarding the delay in issuing Complainant her five-year federal service recognition award and pin, there is no evidence in the record to suggest the delay was due to retaliatory animus as S2 affirmed that were sent directly from Human Resources for issuance. Construing the evidence in the light most favorable to Complainant, the Commission finds that the multiple incidents alleged by Complainant are not sufficiently severe or pervasive to establish a hostile work environment. Even if the alleged conduct was sufficiently severe or pervasive, Complainant failed to show that the Agency’s actions were based on retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. Complainant has not submitted any evidence beyond conclusory statements that she was subjected to a hostile work environment due to prior protected EEO activity. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for reprisal. As a result, the Commission finds no basis to disturb the AJ’s summary judgment decision finding that Complainant was not subjected to reprisal or a hostile work environment as alleged. 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 Commission to AFFIRM the Agency’s final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgement was appropriate, and a preponderance of the record evidence does not establish that discrimination occurred. 2019005900 6 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. 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. 2019005900 7 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 October 19, 2020 Date