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

Equal Employment Opportunity Commission

Nov 13, 2019

2019001438 (E.E.O.C. Nov. 13, 2019)

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

Miguelina S.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 2019001438

Agency No. HS-TSA-02069-2017

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 6,
2018 final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Transportation Security
Officer, SV-1802, Level 3, E-band at the Los Angeles International Airport in Los Angeles,
California.

On September 16, 2017, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against her based on her race (African-American), sex (female), and color (dark)
when, on or around June 12, 2017, the Workplace Violence Prevention Coordinator (“WVC”)
did not investigate a workplace incident.

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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After the investigation of the claim, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant
did not respond.

On November 6, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, the Agency articulated legitimate non-discriminatory reasons for its actions.

Complainant testified that she filed a workplace violence complaint on June 7, 2017, with her
second level supervisor (“S2”) and the Transportation Security Manager (“TSM-1”) regarding a
June 6, 2017 incident with her first level supervisor (“S1”).

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According to Complainant, as stated in a copy of her workplace violence statement, S1 asked her
several questions about her whereabouts after she completed practice skills and evaluation
(“PSE”) testing, “cut her off with verbal outbursts” when she attempted to answer his questions,
yelled at her in an “intimidating manner,” and at one point, S1 became “increasing[ly]
aggressive” when he started “trembling, turning red, and [was] staring at [Complainant] in a
disturbing fashion.” Complainant further states in her workplace violence statement that she
believed that, at one point, S1 would harm her physically. She therefore was prompted to file the
report the following day.

Complainant further testified that management did not respond to her June 7, 2017 complaint
until June 11, 2017. Complainant explained that five days after she requested EEO counseling
on July 26, 2017, another Transportation Security Manager (“TSM-2”) informed Complainant
that he would conduct an investigation and interview all parties involved. Moreover, TSM-2
instructed Complainant to contact the Lead TSM (“LTSM”) with any concerns. Complainant
stated that she followed up with the LTSM on August 9, 2017, who informed her, on August 11,
2017, that her investigation had concluded, and that appropriate action was taken.

The WVC testified that Complainant completed and submitted a workplace violence complaint
on June 7, 2017. The WVC explained that TSM-2 conducted the investigation while TSM-1
conducted the initial fact-finding. This initial fact finding included interviewing all witnesses
involved and collecting written statements. The WVC further explained that the initial fact-
finding occurred from June 7, 2017 through June 9, 2017. The WVC stated that he became
aware on July 27, 2017, of Complainant’s concern that her complaint had not been investigated
and issued a No-Contact Order to S1 and moved S1 to another terminal that same day and
subsequently appointed TSM-2 to conduct an investigation. After S1’s removal, the WVC
explained that an investigation was conducted from July 31, 2017 through August 1, 2017. The
WVC stated that as a result of the investigation, the LTSM had an informal meeting with S1 on
August 3, 2017, discussed different techniques for S1 to use in defusing contentious situations,
and required that S1 include conflict resolution courses into his learning plan.

TSM-2 stated that he conducted an investigation from July 31, 2017 through August 1, 2017 and
determined that there were no inappropriate remarks made by S1 and concluded that the incident
was not a workplace violence issue. TSM-2 explained that his investigation indicated that S1
inquired about Complainant’s whereabouts on the date at issue because Complainant was absent
from the bagging operation after her scheduled training had been cancelled. TSM-2 further
explained that S1 was not aware that Complainant was on her lunchbreak when he began to
question her, and Complainant testified that she may had been wearing headphones at the time.
As a result, TSM-2 stated that S1 felt that he was being “ignored” after calling Complainant’s
name several times without a response and Complainant became offended when S1 raised his
voice to get Complainant’s attention. TSM-2 acknowledged that Complainant stated that she
felt that S1 would physically attack her. However, TSM-2 explained that Complainant “could
not point to any specific threats or actions that would indicate violence.”

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TSM-2 also acknowledged that Complainant informed him, during the investigation, that she felt
that no one had looked into her complaint. TSM-2 testified that the processing of Complainant’s
was “delayed due to unknown factors, but was given due diligence.”

The LTSM testified that S1 received informal counseling as a result of the June 6, 2017 incident.

The Assistant Federal Security Director (“AFSD”) testified that Complainant’s complaint was
not investigated until July 31, 2017 because the WVC did not follow up on the matter because
the WVC “believed that a No Contact Order was being issued and terminal management would
investigate the matter.”

A copy of the initial fact-finding report indicates that TSM-1 conducted the initial inquiry from
June 7, 2017 through June 9, 2017. The report further indicates that TSM-1 obtained statements
from Complainant, S1, and another supervisor who witnessed the verbal exchange between
Complainant and S1. Additionally, the record reflects that TSM-1 promptly emailed the Human
Resources Specialist (“HR Specialist”) on June 9, 2017, a copy of the initial fact-finding report.
TSM-1 also copied the AFSD on her email to the HR Specialist and stated that she advised the
AFSD of Complainant’s complaint. However, the AFSD emailed the HR Specialist, the same
day, indicating that he did not believe that the initial report indicated workplace violence, but he
explained that her inquiry may reveal more. Subsequently, the HR Specialist emailed the AFSD,
also on June 9, 2017, informing him that Complainant’s complaint was under investigation and a
No Contact Order was recommended.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s race, sex, and color.

Harassment/Hostile Work Environment

To the extent that Complainant alleges that the matter raised in the formal complaint constituted
discriminatory harassment, 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 basis – in this case, her race, sex, and color. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. Here, as we have already concluded, Complainant simply has
provided inadequate evidence to support his claim that her treatment was the result of her race,
sex, and color. A case of harassment is precluded based on our findings that Complainant failed
to establish that any of the actions taken by the agency were motivated by her protected bases.
See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
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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

November 13, 2019
Date