Kendra W.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionOct 29, 20190120182589 (E.E.O.C. Oct. 29, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kendra W.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120182589 Agency No. HS-TSA-00245-2018 DECISION On July 19, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the June 6, 2018 final agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer, SV-1802, F-Band, at the Shreveport Regional Airport in Shreveport, Louisiana. On November 1, 2017, Complainant was assigned to supervise four employees at the checkpoint. The Transportation Security Manager (TSM) assigned the Transportation Security Officers (TSOs) their duties and verbally instructed them to go on break after completing the duties. Upon completion of their duties, Complainant and the TSOs went to the breakroom. Complainant claimed that the Supervisory TSO (STSO) entered the breakroom upset and speaking loudly and ordered everyone to report to the checkpoint. 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. 0120182589 2 Complainant stated that she replied that everyone was on break after finishing their duties and that she was on her lunch break. Complainant stated that she finished her lunch break and reported to the checkpoint. Complainant alleged that later that day, the Lead TSO (LTSO) approached her at the office area and questioned her about the earlier incident with STSO. Complainant provided LTSO with her summary of the incident and stated that STSO ignored her. LTSO asked Complainant what she could have done differently to achieve a better outcome. Complainant “inferred” that this conversation was a verbal counseling; however, LTSO did not state that it was a verbal counseling. Sometime later, S2 discussed the incident with TSM. Complainant told TSM that she did not understand why she and another African-American female TSO (CW-1) were verbally counseled regarding the incident. Complainant claimed that S2 stated he would speak to the other TSOs, which he did. Complainant claimed that the incident has caused her stress and that she feels stigmatized. Complainant did not receive any discipline for the incident. STSO affirmed that he entered the breakroom on the day in question and asked the five employees present to return to the checkpoint to assist in opening it. STSO stated that three TSOs complied with his request, while CW-1 and Complainant did not. Complainant informed STSO that she was on her lunch break. STSO denied being upset or raising his voice. STSO added that approximately 30 minutes later, he returned to the breakroom and saw Complainant and CW-1 were still there on their cellphones. Following the incident, STSO emailed several officials including TSM about the incident. STSO mentioned that management should consider including the incident in Complainant and CW-1’s Transportation Officers Rating System (TOPS) and/or issuing letters of counseling. TSM affirmed that he spoke to Complainant about the incident, which appeared to him to be a misunderstanding. TSM confirmed that he also spoke with the other TSOs who reported that STSO was frustrated but did not yell. TSM did not ultimately issue any discipline to anyone for the incident. On December 18, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American) and sex (female) when on November 1, 2017, Complainant was given a verbal counseling for insubordination. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that the incident at issue was insufficiently severe or pervasive to establish a hostile work environment. Further, the Agency found that there was no evidence that the conduct at issue was based on Complainant’s protected classes. In particular, both STSO and TSM affirmed that the STSO’s conversation with Complainant did not constitute verbal counseling, but rather, was merely fact-finding. 0120182589 3 In addition, Complainant admitted that she only “inferred that [the conversation] was a verbal counseling.” Further, TSM spoke to all individuals involved in the incident, which Complainant acknowledged. TSM concluded that the incident occurred because of “ineffective communication,” that no disciplinary action would be issued to anyone, and that he considered the incident closed. As a result, the Agency concluded that Complainant had not been subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that she was singled out as only she and CW-1 were initially asked about the incident. Complainant further disputes that the other TSOs reported directly to the checkpoint. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS 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 protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant asserted that based on her protected classes, management subjected her to a hostile work environment as evidenced by the November 1, 2017 incident and management’s response. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory animus. 0120182589 4 The record establishes that Complainant and four other TSOs had completed a collateral duty and were on break. ROI, at 59. STSO entered the breakroom and informed the TSOs that everyone needed to help out at the checkpoint. Id. STSO denied asking anyone to cut their break short. Id. STSO affirmed that when he returned 30 minutes later, Complainant and CW-1 were still present in the breakroom. Id. STSO then contacted other management officials and expressed his belief that the incident should be considered in their TOPS or that Complainant and CW-1 be issued letters of counseling for failure to follow directions. Id. at 60. TSM then directed LTSO to gather more information about the incident, and LTSO discussed the incident with Complainant. Id. at 72. LTSO denied that the conversation was a verbal counseling and that they both concluded that the incident was the result of a breakdown in communication. Id. Additionally, TSM had a conversation with Complainant soon thereafter and assured Complainant that he would speak to all individuals involved. Id. at 64. After discussing the incident with the remaining witnesses, TSM determined that STSO’s demeanor did seem excited/frustrated, but that he did not yell at the TSOs and Complainant. Id. After gathering all of the information, TSM concluded that ineffective communication was the contributing factor to the situation and disciplinary action was not warranted. Id. at 65. The Commission finds that Complainant has not shown that she was subjected to a discriminatory hostile work environment. Moreover, to the extent Complainant claimed that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not demonstrated that the Agency’s explanation for its actions was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination 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 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 (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. 0120182589 5 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. 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. 0120182589 6 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 29, 2019 Date Copy with citationCopy as parenthetical citation