Kendra W.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Oct 29, 2019

0120182589 (E.E.O.C. Oct. 29, 2019)

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.
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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.
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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.
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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.
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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.

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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 29, 2019
Date