Celeste P.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionApr 2, 20190120171593 (E.E.O.C. Apr. 2, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celeste P.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120171593 Hearing No. 471-2015-00082X Agency No. HS-TSA-00866-2014 DECISION On March 28, 2017, 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 February 27, 2017, final decision 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 decision. ISSUE PRESENTED The issue presented is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, sex, color, and/or reprisal. 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. 0120171593 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal in the Agency’s Federal Air Marshal Service Detroit Field Office in Romulus, Michigan. From January 2013 through February 20, 2014, Complainant was an Assistant Operations Officer, and her first-line supervisor was a Supervisory Federal Air Marshal (S1, Light Brown, African- American, heterosexual female). On February 21, 2014, Complainant returned to flight status, and another Supervisory Federal Air Marshal (S2, male2) became her first-line supervisor. At all times relevant to her complaint, Complainant’s second-line supervisor was the Assistant Special Agent in Charge (S3, Black, African-American, heterosexual male), and her third-line supervisor was the Special Agent in Charge (S4, White, Caucasian, heterosexual male). Complainant is a White, Caucasian, lesbian female. Complainant averred that she told S1 about her sexual orientation and showed her a picture of her female partner in January 2014. Complainant alleged that after she told S1 she was a lesbian their relationship changed: S1 treated her more formally and began excluding her. S1 denied that Complainant told her about her sexual orientation. According to Complainant, she engaged in protected EEO activity in February 2014 when she complained to S4 about the unequal treatment she received when she was reassigned to flight status. Complainant stated that on February 4, 2014, she had a disagreement with a coworker (C1, tan, Hispanic, heterosexual male) about international assignments and that C1 reported the disagreement to S1. C1 stated that Complainant demanded that he assign her to a trip and that when he would not do so she started insulting him and his family and stated that she would never assign him to an international trip when she was in charge of assignments. S1 averred that C1 told her that Complainant made derogatory comments about his family and stated that she would not assign him to international missions in the future. Complainant alleged that S1 subsequently yelled at her that S1 was in charge of international assignments and that they needed to go speak in S3’s office. S1 denied yelling. According to S1, she was trying to talk to Complainant, but Complainant raised her voice, and she raised her voice to Complainant. S4 stated that he heard raised voices coming from Operations and asked S3 to look into it. S3 stated that he was in the hallway and heard both Complainant and S1 raise their voices. According to Complainant, in S3’s office, S1 yelled that Complainant was out of line. Complainant stated that S3 did not ask S1 to lower her voice or give Complainant an opportunity to speak. S3 averred that he gave both S1 and Complainant an opportunity to speak. According to S3, at the end of the meeting, he asked Complainant if she had anything to add and she stated that she was taking leave for the rest of the day. Complainant averred that she told S3 that she was going to take sick leave for the remainder of the day. S3 stated that he told S1 that she should ask the employees in Operations for statements to find out what led to the incident on February 4, 2014. Complainant stated that she did not return to work until February 11, 2014. 2 Complainant indicated that sex and reprisal were the only bases for the claims involving S2, so the EEO Investigator did not ask S2 about his race, sexual orientation, or color. 0120171593 3 S1 stated that she asked C1 and the other employees assigned to Operations, C2 (White, Caucasian, heterosexual male) and C3 (White, American Indian, heterosexual male), to write statements about what they witnessed on February 4, 2014. According to S1, she planned to ask Complainant for a statement when she returned to work. S1 averred that she learned that Complainant had previously had an incident with another employee (C4), so she also asked C4 for a statement about that incident. Complainant averred that on February 11, 2014, C4 told her that S1 had requested a statement about an alleged incident involving Complainant. Complainant alleged that she told S1 that she heard that she was gathering statements about her but that S1 denied doing so. According to Complainant, S1 told her that several of her coworkers had complained that Complainant had been disrespectful while working in Operations. Complainant stated that she reported that S1 was harassing her to S3 and S4 on February 12, 2014. S3 and S4 denied that Complainant reported that she was being harassed. Complainant averred that on February 12, 2014, S1 called Complainant into her office and told her that she had “one last chance” in Operations, holding her thumb and finger about an inch apart to indicate that it was a small chance, and that Complainant would be reassigned if there were any further complaints. S1 stated that she made this statement because S4 told her to communicate to Complainant that her behavior had been unacceptable on February 4, 2014, and that future incidents would not be tolerated if she wanted to stay in Operations. S4 stated that Complainant’s behavior had been unacceptable. Complainant was out of the office on an international trip from February 14 to 18, 2014. According to Complainant, she asked C3 to serve as her back up to assign teams for international trips while she was out. S1 stated that Complainant left on the international mission without completing all of the necessary work for assigning teams for other international missions. S1 averred that Complainant indicated that she had completed the work before leaving but that Complainant actually left incomplete work for C3 to complete. Complainant stated that when she returned to work on February 19, 2014, S1 interrogated her about assigning teams for international trips. Complainant alleged that S1 criticized her work as inefficient. According to S1, she called Complainant into her office to discuss the issue. Complainant stated that on February 20, 2014, she met with S1, S3, and S4. S3 stated that Complainant blamed her coworkers for the issues raised and stated that she was being picked on, so S1 gave examples of how Complainant had alienated her coworkers in Operations. According to Complainant, S1 told her that C1 stated that he was afraid to be alone with Complainant and that another coworker stated that he was glad that Complainant did not bring a gun to work. S1 stated that on February 4, 2014, C1 told her that he was afraid to be alone with Complainant and that C3 told her that he had heard another employee say that he was glad that Complainant did not carry a gun at work because of her temper. Complainant averred that S1 told her that she was being reassigned from Operations to flight status. Complainant stated that S4 assured her that she would have her choice of teams on flight status and that the reason for her reassignment would remain confidential. S4 stated that he removed Complainant from her Assistant Operations Officer position because Complainant was not working well with her coworkers in Operations, which was impeding customer service. 0120171593 4 Complainant averred that on March 19, 2014, a Federal Air Marshal (C5) told her that C2 had said that Complainant had left Operations due to performance issues and because her coworkers were afraid of her. C2 stated that C5 was badgering him about why Complainant left Operations, so he told him that she had performance issues and was not an effective team member. According to C2, what he told C5 was his personal opinion on the matter. Complainant alleged that the standard process for being assigned trips while on flight status is to express preferences for trips. S2 stated that Federal Air Marshals do not request trips. According to S2, he asks his subordinates to notify him about leave, passport or visa issues, or other scheduling conflicts, and then he schedules the trips. On July 2, 2014, S2 sent an email asking his subordinates to submit leave requests for September 7 to October 4, 2014, so he could assign the international missions during that time period. According to Complainant, she requested to be assigned to trips during her five-day work week. Complainant averred that on July 10, 2014, S2 assigned her a six-day international trip that she did not request. Complainant stated that she had a doctor’s appointment scheduled for her day off, so she told S2 that she could not complete the assigned trip. According to S2, employees regularly are assigned to work trips on the regular days off, and he assigned Complainant this mission because she did not indicate that she was unavailable on the date in question. Complainant alleged that S2 told her that she would have to request sick leave for her doctor’s appointment. S2 averred that he did not know that the day in question was Complainant’s regular day off when he told her to request sick leave. Complainant stated that when she told S2 that the appointment was scheduled for her day off S2 did not require her to request sick leave. On September 30, 2014, S2 rated Complainant at the “Achieved Expectations” level for fiscal year 2014. Complainant alleged that S2 justified the rating by telling her that she had a negative attitude in Operations and that she did not serve as a team leader on international flights. Complainant averred that team leader positions are voluntary. Complainant stated that she should have received a higher rating because she did not have a negative attitude and because she should not be penalized for not seeking out voluntary assignments. S2 stated that he rated Complainant at this level because she did not seek out opportunities to be a team leader or alternate team leader on an international mission. According to S2, all of the other Federal Air Marshals under his supervision requested to serve as a team leader or alternate team leader during this period. S2 stated that Complainant was not doing more than what was expected of her based on her performance standards and that she complained about her schedule. S2 averred that he also rated four male Federal Air Marshals at the “Achieved Expectations” level. On June 25, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female, sexual orientation), color (white), and reprisal for prior protected EEO activity (opposition to discriminatory practices) when: 1. On February 4, 2014, S1 singled Complainant out and yelled at her in front of her peers and supervisors, and S3 failed to promptly correct S1’s conduct; 0120171593 5 2. On February 11 and 14, 2014, Complainant learned that S1 was soliciting derogatory statements against Complainant from employees; 3. On February 12, 2014, S1 called Complainant into her office and told her, “Yesterday was your last chance, and then you’re out,” while holding up her index finger and thumb; 4. On February 19, 2014, S1 called Complainant into her office and interrogated her about an international trip. Later, Complainant met with S4, but he failed to promptly address and correct the harassment; 5. On February 20, 2014, Complainant met with S3 and S4, and Complainant learned that a coworker stated that he was afraid to be alone with her and that another coworker stated that he was glad that Complainant did not bring her gun to work. Complainant also learned that she was being removed from her Assistant Operations Officer position and returning to flight status; 6. On March 19, 2014, a coworker told Complainant that another coworker was spreading rumors about her and the reason she was removed from her Assistant Operations Officer position; 7. On July 10, 2014, after Complainant submitted her trip request to S2, S2 assigned Complainant to go on an overseas trip that she did not request because Complainant had a scheduled doctor’s appointment. S2 requested Complainant to submit a sick leave request for the day of the appointment, even though the appointment was on Complainant’s regular day off; and 8. On September 30, 2014, S2 gave Complainant a low score on her performance evaluation and told her that she had a negative attitude. 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 an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. 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 her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she established that S1 singled her out because of her sexual orientation and because she was the only female working in Operations. According to Complainant, she was subjected to a hostile work environment, and she was also discriminated against when she was reassigned, when S2 asked her to submit a leave request for her regular day off, and when she was rated as “Achieved Expectations.” 0120171593 6 Complainant requests that the Agency’s final decision be reversed and that she be awarded substantial compensatory damages and attorney’s fees. In response to Complainant’s appeal, the Agency contends that Complainant failed to establish that she was subjected to a hostile work environment or disparate treatment. The Agency requests that its final decision finding no discrimination be affirmed. 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 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 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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has 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 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant alleged that she was subjected to discrimination when she was reassigned from Operations to flight status. The Agency’s legitimate, nondiscriminatory reason for reassigning Complainant is that she had trouble getting along with her coworkers, which caused disruptions. As evidence of pretext, Complainant contends that S1 singled her out based on her sex and sexual orientation. However, the preponderance of the evidence in the record does not establish that the Agency’s proffered legitimate, nondiscriminatory reason is pretextual. Complainant also alleged discrimination with respect to being assigned a trip on her regular day off and being asked to submit a leave slip for a doctor’s appointment on her regular day off. 0120171593 7 The Agency’s legitimate, nondiscriminatory reasons for its actions are that Complainant did not inform S2 that she was unavailable for the six-day international mission that included her regular day off and that S2 was unaware that the date of the appointment was her regular day off when he told her to request leave. We find that the preponderance of the evidence does not establish that these legitimate, nondiscriminatory reasons were a pretext designed to mask discrimination based on sex and/or reprisal. Finally, Complainant alleged that she was discriminated against when she was rated at the “Achieved Expectations” level. The Agency’s legitimate, nondiscriminatory reasons for the rating were that Complainant did not go beyond what was expected of her by serving as team leader or alternate team leader and that she had a tendency to complain about scheduling issues that affected all Federal Air Marshals. Although Complainant notes that team leader assignments are voluntary, this does not establish pretext. Moreover, the preponderance of the evidence in the record does not otherwise establish that the Agency’s legitimate, nondiscriminatory reasons were pretextual. 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). 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). Here, there is no evident connection between the alleged harassment and Complainant’s race, sex, sexual orientation, color, or prior protected EEO activity. Moreover, the alleged harassment appears to primarily consist of disagreements with S1 that are insufficiently severe or pervasive to constitute a hostile work environment. Although S1 admitted raising her voice towards Complainant, witnesses corroborated S1’s testimony that Complainant was also raising her voice. With respect to S1 collecting “derogatory statements,” the record reflects that S1 was complying with S3’s instruction to investigate the events of February 4, 2014, by collecting witness statements. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Accordingly, we find that Complainant has not established by the preponderance of the evidence that she was subjected to a hostile work environment. 0120171593 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance of the evidence in the record does not establish that discrimination occurred. 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. 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 (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. 0120171593 9 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 April 2, 2019 Date Copy with citationCopy as parenthetical citation