Lyda F.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Feb 7, 2019

0120171803 (E.E.O.C. Feb. 7, 2019)

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

Lyda F.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120171803

Hearing No. 430-2012-00110X

Agency No. HS-TSA-00632-2011

DECISION

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 26, 2015, 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 Lead Transportation
Security Officer at the Agency’s Charlotte Douglas International Airport in Charlotte, North
Carolina.

On March 25, 2011, Complainant filed an EEO complaint alleging that the Agency subjected her
to discrimination and a hostile work environment on the bases of race (African-American), sex
(female), color (brown), and reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when:

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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1. On unspecified dates in October 2010, she was denied overtime;

2. On October 19, 2010, she was issued a Notice of Three-Day Suspension;

3. On December 15, 2010, a Screening Manager advised her that she must stand at all
times;

4. From March 28, 2011 through March 30, 2011, she received a second suspension when,
upon returning to work from surgery, she served the three-day suspension issued in
October 2010;

5. On unspecified dates, Complainant was denied collateral duties; and

6. On September 13, 2011, Complainant was issued a Notice of Decision on a Proposed
Seven-Day Suspension.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s September 10, 2012,
motion for a decision without a hearing and issued a decision without a hearing on January 28,
2015.2

For claim (1), the AJ found that Complainant provided the Agency a letter from a physician
indicating that due to her foot condition, her work hours should be limited to no more than 8 hours
per day, 5 days per week. The AJ found that despite this advice from her treating physician,
Complainant accepted and worked overtime on numerous occasions.

As for claims (2) and (4), the AJ found that management issued Complainant a three-day
suspension for a security breach that occurred while Complainant was on duty as the LTSO.
Though the AJ acknowledged that management did not suspend other employees who were also
present during the security breach, the AJ noted that those employees, unlike Complainant, were
not directly supervising the relevant area at the time of the breach. The AJ also found that the
discipline at issue was not discriminatory because management had previously issued a three-day
suspension to a Caucasian male for a comparable security breach.

Regarding claim (3), the AJ found that management did not take any adverse against Complainant
for her failure to stand while working at the Automated Imaging Technology (AIT) machine, aside
from being directed to stand by a manager.

2 The AJ initially issued the decision on March 19, 2013; however, as all parties did not receive a
copy of the decision, the AJ subsequently reissued the decision on January 28, 2015, to afford the
parties the opportunity to appeal.
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For claim (5), concerning the denial of collateral duty assignments, the AJ found that Complainant
was not selected for a March 2010 collateral duty assignment because she lacked the requisite
computer skills. The AJ also noted that Complainant was not selected for a July 2011 collateral
duty position at the Coordination Center because she failed to apply for the position. Additionally,
the AJ noted that Complainant had previously been selected for collateral duty in the past,
including an assignment as a mentor in 2012.

As for claim (6), the AJ found that management issued Complainant a seven-day suspension
because of her prior disciplinary history, which included a similar security breach.

In granting the Agency’s motion for a decision without a hearing, the AJ found no evidence of
discriminatory motivation, even after considering all evidence and arguments in the light most
favorable to Complainant. On March 3, 2015, the Agency issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

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. Upon
review of the record, we find that a decision without a hearing was appropriate in this case, as the
record is adequately developed and there are no genuine issues of material fact to necessitate an
evidentiary hearing.

Assuming Complainant established a prima facie case on all alleged bases, we find that
Complainant has failed to show that the Agency’s actions were motivated by discriminatory or
retaliatory motive. We find that the Agency has articulated legitimate, nondiscriminatory actions
for each of its actions.

For claim (1), the Agency cited to Complainant’s letter dated July 5, 2010, as the basis for denying
her requests for overtime. In her letter, Complainant informed management that “The details of
the condition of employment which are directly responsible for the illness is the extended periods
of excess standing on the floors working the checkpoints screening passengers for 8 or more hours
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a day, 5 or more days a week.” The Agency emphasized that while it retained the right to impose
mandatory overtime when needed, it nevertheless had an obligation to limit Complainant’s
working hours to protect her health.

Complainant has not demonstrated by a preponderance of the evidence that the Agency’s
explanation for denying her overtime requests was false or a pretext for discrimination. In so
finding, we reject Complainant’s contention that if management officials really wanted to protect
her health, they would not have allowed her to work overtime on numerous occasions in
September, October, and November 2010. Our review of the record shows that management
imposed mandatory overtime in September 2010, for all officers (with and without medical
restrictions), due to the needs of the Agency. Moreover, the record reflects that after Complainant
filed a grievance against the Agency over the overtime issue, management met with her in early
October 2010, to discuss her medical restrictions and eventually acquiesced to her requests for
overtime after learning that she had no documented medical restriction.3 Complainant has not
shown that she was treated less favorably than similarly situated employees.4 Consequently, we
find her offer of pretext to be unpersuasive, and affirm the AJ’s grant of summary judgment in
claim (1).

For claims (2) and (4), we agree with the AJ’s finding of no discrimination. Although we
acknowledge that management assessed Complainant with the harshest penalty for the security
breach in 2010, we find that such penalty was not disproportionate given her position as the LTSO
in charge of the checkpoint (i.e., other officers were in the area during the security breach, but
unlike Complainant, they were not in charge of the checkpoint). The record also reflects that
management had legitimate, nondiscriminatory reasons for delaying Complainant’s suspension to
March 2011, due to her leave of absence for surgery. Complainant has not shown that such actions
were pretext for discrimination. Moreover, we find that the delay cannot be construed as a second
suspension, as she had not yet served her original suspension.5

As for claim (3), the Agency explained that officers are generally allowed to sit, except when
operating the AIT machine. Though Complainant asserted on appeal that management allows

3 The AJ found that Complainant provided the Agency a letter from her physician indicating her
restrictions. A review of the record shows that Complainant submitted her July 5, 2010 letter to
management without any medical documentation.

4 During the investigation, Complainant alleged that management allowed a Caucasian female,
who had filed a workers’ compensation claim to work overtime. The investigative record reveals,
however, that the comparative employee had no known disability and was not on light or limited
duty. Thus, this individual was not similarly situated to Complainant.

5 As indicated in the investigative record, Complaint received a three-day suspension in October
2010 for the breach incident, which was slated to be served in December 2010. Due to her foot
condition, she ultimately served the three-day suspension in March 2011.
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Caucasian officers to sit, we find her allegation to be unsupported. As such, Complainant has
failed to demonstrate that the Agency’s articulated explanation was a pretext for discrimination.

With regard to claim (5), the Agency averred that management did not select Complainant for two
collateral positions as an Acting Coordination Center Watch Officer and Assistant Training
Instructor because she did not have relevant computer experience and other qualifications required
to work in the Coordination Center. The Agency averred that management ultimately selected
several officers, both within and outside Complainant’s protected classes to work in the
Coordination Center on a trial basis.

In nonselection cases, Complainant can demonstrate pretext by showing that her qualifications for
the position were plainly superior to those of the selectee. Hung P. v. Dep’t of Veterans Affairs,
EEOC Appeal No. 0120141712 (Dec. 3, 2015). The preponderance of the evidence, however, does
not show that Complainant’s qualifications were plainly superior to the selectees. Moreover, even
if Complainant’s allegation of preselection was true, such actions are permissible as long as the
preselection is not premised upon a prohibited basis. See Complainant v. Dept. of Homeland
Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015). Complainant has failed in this regard.

Regarding claim (6), the Agency cited to Complainant’s prior disciplinary record as the reason for
issuing her a Notice of Decision on a Proposed Seven-Day Suspension. We agree with the AJ that
such considerations were not discriminatory or improper. In so finding, we acknowledge
Complainant’s contention that management should not have considered her prior disciplinary
history because the facts of her second security breach differed from her first security breach.
Complainant’s allegation, even if true, is insufficient to satisfy her burden of persuasion of
demonstrating pretext. Moreover, we reject Complainant’s offer of comparative employees, as the
record reflects that she had more significant prior disciplinary history than her cited comparators.

Even if we analyze Complainant’s claims under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993), we find that Complainant's claim of a hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that any of the actions taken by the Agency were motivated
by discriminatory or retaliatory animus. See Oakley v. United States Postal Service, EEOC Appeal
No. 01982923 (Sept. 21, 2000). Furthermore, we agree with the AJ that the preponderance of the
evidence shows that the alleged instances of harassment were related to Complainant’s job duties
or her conduct, rather than her protected characteristics.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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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. 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.
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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

February 7, 2019
Date