Lara G., Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Oct 5, 2017

0120172683 (E.E.O.C. Oct. 5, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Lara G.,
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120172683

Hearing No. 430-2015-00140X

Agency No. HS-TSA-01640-2013

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated July 11, 2017, finding no discrimination
regarding her 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, filed on November 16, 2013, Complainant alleged discrimination based on sex
(female), disability (esophageal varices), and in reprisal for prior EEO activity when:

(1) On May 25, 2013, she was issued a Letter of Counseling;

(2) In May 2013, a Supervisory Transportation Security Officer (STSO) commented about
her weight and/or the size of her breasts; and

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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(3) On May 29, 2013, through June 29, 2013, she was placed on unpaid leave.2

On April 16, 2014, the Agency issued its decision dismissing the complaint for untimely filing of
a formal complaint. Complainant appealed. The Commission, in EEOC Appeal No.
0120142248 (September 25, 2014), reversed the Agency’s decision and remanded the complaint
to the Agency for further processing. Accordingly, the Agency accepted and investigated the
complaint. After the investigation of the complaint, Complainant requested a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). On August 10, 2015,
the Agency filed a Motion for Summary Judgment. On June 26, 2017, the AJ issued a decision
without holding a hearing, finding no discrimination. The Agency’s final order implemented the
AJ’s decision. Complainant appeals the Agency’s final order and contends that the AJ
improperly granted summary judgment without a hearing.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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.

Initially, the AJ indicated that Complainant failed to file her response to the Agency’s Motion for
Summary Judgment by August 24, 2015, the last date to file the response. On appeal
Complainant contends that she did file her response via email at 4:36 pm on August 24, 2015,
and provides a copy of her response on appeal. Here, for the sake of argument, we will consider
that Complainant filed her response in a timely manner. Upon review, we find after considering
Complainant’s response to the AJ opposing summary judgment, the AJ properly issued her
decision without a hearing because no genuine dispute of material fact exists.

In the instant case, the AJ incorporated the factual portion of the Agency’s Motion for Summary
Judgment by reference into her decision. The AJ, assuming arguendo that Complainant had
established a prima facie case of discrimination, determined that the Agency articulated

2 The Agency in its decision slightly misidentified the dates of the claims which we have
corrected in this decision.
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legitimate, nondiscriminatory reasons for its actions. At the relevant time, Complainant was
employed by the Agency as a part-time Transportation Security Officer (TSO), SV-1801-E
Band, at the Agency’s Raleigh-Durham International Airport (RDU), Raleigh, North Carolina.
She worked from 5 am to 10 or 11 am in the Terminal 2 baggage area.

Regarding claim (1), Complainant’s then supervisor (S1) indicated that she issued Complainant
the counseling at issue because she continually reported to her baggage area late/tardy and failed
to clock in the Kronos clock in her assigned area for work as instructed to do so. Complainant
admitted that she arrived late during the relevant time. Complainant indicated that during the
relevant time, she had a medical condition related to her circulation, endocrine, and digestive
system (acid reflux). Complainant admitted that she took no medication for her conditions, she
could perform the essential functions of her position with or without an accommodation, and she
told management that she was not well some mornings. Management indicated that they were
not aware of Complainant’s foregoing conditions and she did not request a reasonable
accommodation.

Regarding claim (2), Complainant indicated that May 18, 2013, was her birthday and she
received a birthday cake from an identified Lead TSO. Complainant stated that after sharing the
cake with everyone in the baggage area, she took the rest home. Complainant stated that the next
day on May 19, 2013, while in the training room, her STSO asked what she did with the cake
and Complainant told her she took it home. Complainant stated that the STSO then told her “you
ate all that cake? You don’t need all that cake, don’t you see you ain’t got no neck.” The STSO
denied making the comments about Complainant’s neck or her weight.

Complainant also claimed that on May 26, 2013, the STSO, after getting her recent promotion,
offered to buy breakfast for screeners located in the baggage area. Complainant stated that the
STSO asked everyone what they wanted to eat and when the STSO asked her if she wanted an
egg sandwich/biscuit or a chicken biscuit, she told the STSO she wanted both. Complainant
stated that the STSO then told her “you want all that, don’t you see those” while pointing at her
breasts. Complainant stated that she thought “well gosh, I can pay for it if it’s that serious” and
at the time of the incident she did not think of the comments as a problem.

The STSO indicated that at the relevant time, she did offer to buy breakfast for the staff in the
baggage area to show her appreciation. The STSO stated that when Complainant came to the
baggage area at 5 am, she already had breakfast from McDonald’s as she had a large
McDonald’s bag and drink. The STSO stated that when the STSO asked if Complainant wanted
anything for breakfast, she ordered two egg/chicken biscuits. The STSO stated that the STSO
then pointed at the direction of her McDonald’s bag and asked if Complainant was going to eat
all that. The STSO denied referring or pointing at Complainant’s breasts or weight as claimed.
An identified employee who was there at the relevant time indicated that Complainant was
holding a breakfast platter from McDonald’s in her hand and when the STSO, pointing at that
breakfast platter, said “are you going to be able to eat all that,” Complainant replied yes.

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Complainant acknowledged that the STSO had a “quick tongue” and spoke without thinking.
Complainant indicated that she did not report the STSO’s comments to her manager (M1) until
June 29, 2013. Complainant acknowledged that M1 conducted an investigation concerning the
matter and in July 2013, M1 informed her that she could find no one that could support the
comments made by the STSO as reported by Complainant.

Regarding claim (3), Complainant, clarifying the incident, indicated that at the relevant time, she
was forced to call in to RDU and place herself on leave without pay (LWOP). Regarding the
instant incident, Complainant’s other manager (M2) indicated that on May 29, 2013, he received
a call from the RDU Coordinator Center and was informed that Complainant made a comment to
her coworker that she was going to commit suicide. M2 stated that he then discussed the
information with Complainant who confirmed she made the suicide comment. M2 stated that he
then sent Complainant home. M2 stated that he also informed Complainant that he would
approve any leave available, i.e., sick, annual, and/or LWOP, while she was at home, and RDU
would need medical documentation from her stating she was fit for duty before returning to duty
at RDU. Complainant subsequently provided medical information to show she was fit for duty.
Complainant was then returned to work on June 29, 2013. M2 stated that he had no authority to
place her on administrative leave at the relevant time.

The STSO indicated that on May 29, 2013, Complainant made the comments in front of her and
Complainant’s coworker that she was going to go home and kill herself. The STSO stated that
the STSO then reported the information to the RDU Command Center on the same day.

Complainant admitted that on May 29, 2013, she made a passing comment to her coworker that
RDU would make someone want to go home and commit suicide. Complainant indicated that
she did not request sick or annual leave, but she took the LWOP instead. After a review of the
record, we find that Complainant failed to show that there were any similarly situated employees
not in her protected groups who were treated differently under similar circumstances.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. There is no evidence that she requested and was denied a reasonable
accommodation for her claimed disability at the relevant time. Regarding her claim of
harassment, we find that even if the STSO made the alleged comments, Complainant failed to
establish the severity of the conduct in question or that it was related to any protected basis of
discrimination. In the instant case, we find that the record is adequately developed and there are
no material facts in dispute. Also, after reviewing Complainant’s opposition to summary
judgment, we find that the AJ properly found that the complaint could be decided without a
hearing and properly adopted the Agency’s statement of undisputed facts. Upon review, the AJ
found and we agree that there is no evidence that the Agency’s articulated reasons were untrue or
otherwise indicative of pretext. Based on the foregoing, we find that Complainant failed to show
that the Agency’s actions were motivated by discrimination as she alleged.

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CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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).

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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. 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 5, 2017
Date