U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicolasa M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal Nos. 2019005587 2019005644 Hearing Nos. 520-2017-00049X 520-2018-00327X Agency Nos. HS-TSA-23647-2015 HS-TSA-24460-2017 HS-TSA-00988-2017 DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 26, 2019 final order concerning the three formal complaints which claimed unlawful 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Transportation Security Officer (TSO) at the Agency’s Newark Liberty International Airport in Union, New Jersey. In August 2018, in addition to her official TSO duties, Complainant served as one of the Regional Vice Presidents, Council 100, American Federation of Government Employees (AFGE), as well as a training instructor for AFGE. 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. 2 2019005587, 2019005644 Complainant filed three formal EEO complaints on May 20, 2015 (“Complaint 1” - Agency No. HS-TSA-23647-2015), September 8, 2016 (“Complaint 2” - Agency No. HS-TSA-24460-2015), and June 8, 2017 (“Complaint 3” - Agency No. HS-TSA-00988-2017), respectively. The Agency consolidated the formal complaints for processing. Complainant claimed she was subjected to discriminatory harassment based on sex (female), disability,2 and in reprisal for prior protected EEO activity when:3 HS-TSA-23647-2015 Whether Complainant was subjected to discrimination and harassment based on sex (female) and disability when the following occurred: 1. on February 23, 2015, an Acting Director refused to grant Complainant official time for an employee union-related conference call; 2. on February 25, 2015, Complainant was excluded from an email that notified employees of a change in Management Directive (1100.00-2); 3. on March 20, 2015, Complainant was required to take a fitness for duty examination by the Office of Chief Medical Officer (OCMO); 4. on March 23, 2015, management excluded Complainant from an email to determine the union’s availability to attend a quarterly meeting; 5. on March 27, 2015, Complainant received an email from a Human Resources (HR) Specialist requesting documentation for her absences dating back to October 2014 and copies of all official time forms from September 2014; 6. on March 31, 2015, Complainant was informed her light duty assignment was rescinded by the Federal Security Director (FSD) and she was placed on Leave Without Pay (LWOP); 7. on March 31, 2015, Complainant’s request for official time to attend a meeting with TSA senior leadership was denied by the FSD; 8. on April 12, 2015, the FSD denied Complainant’s request for an extension to submit medical information; 2 Complainant identified her disability as vasospastic angina. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 3 For ease of reference, the Commission as re-numbered Complainant’s claims as claims 1-44. 3 2019005587, 2019005644 9. on May 30, 2015, Complainant’s three requests for official time were not approved by the FSD; 10. on June 1, 2015, Complainant’s official time request was not approved; 11. on June 2, 2015, Complainant was drug tested and informed that Security Training Instructors (STIs) were ordered to monitor her actions; 12. on June 5, 2015, Complainant’s official time request was not approved. In addition, a Training Manager told another employee to watch Complainant’s reaction when she opened her email to find out her training was not approved; 13. on June 11, 2015, Complainant was informed that she would not be allowed to receive official time for contract negotiations, from June 14th to June 19th, 2015; 14. on June 19, 2015, Complainant was denied official time for serving as an instructor for the Dispute/Resolution/CBA Training at Norfolk Airport from June 29, 2015 to July 3, 2015; and 15. on June 24, 2015, Complainant was denied access to a training room, refused access to a computer and had to sit at a supervisor’s desk so she could be monitored. HS-HAS-24460-2015 Whether Complainant was subjected to harassment because of her sex, disability, and in retaliation for prior EEO activity when the following occurred: 16. on June 1, 2015, a Supervisory Training Instructor (STI) denied Complainant’s Return to Duty (RTD) baggage training, despite a TSA Settlement Agreement, and told Complainant to report to Terminal A; 17. in June 2015, an STI directed another employee to tell Complainant she is not allowed to be on her phone. STI’s employees also told Complainant that they were there to “babysit” her; 18. on June 4, 2015, a DFSD only approved 16 hours of the 40 hours requested by Complainant for travel and preparation to testify in the National Arbitration Hearing set for June 11, 2015 to June 12, 2015. DFSD also modified Complainant’s request form and has not responded to Complainant’s email on the reason for disapproval of required time; 19. on June 8, 2015, Complainant emailed FSD to report that she is still not in a baggage class and that her official time and SF71’s were not sent back to her approved/disapproved timely. However, no response was received from FSD; 4 2019005587, 2019005644 20. on June 9, 2015, management has failed to send official time approvals for payroll processing of June 1, 2015, June 5, 2015, and June 9, 2015 through June 12, 2015; 21. on June 12, 2015, Complainant received email that she is to follow previous travel arrangements for June 14, 2015 through June 19, 2015. However, the email was not from her DFSD; 22. on June 16, 2015, Complainant received email from Integrated Resource Team department requesting documentation for 32 hours of official time off which has not been processed by DFSD; 23. on June 22, 2015, Complainant had a Designated Grievance Official meeting with FSD who restated that she will not be allowed Official time until certification is completed. However, Complainant has not been provided the required baggage training; 24. on June 23, 2015, Complainant received email from an HR Specialist requesting an Extended Leave Checklist that had been submitted by Complainant on May 29, 2015; 25. on June 24, 2015, Complainant received a contradiction in orders from ETI regarding the use of training room, leading to a threat from DFSD that if she did not go in the training room, she was forbidden from the room all day, and that appropriate action will be taken; 26. in or around January 2016, upon Complainant’s return to duty from serving as AFGE Negotiator, management instructed Complainant to attend a Divestiture Officer Training class and she was not scheduled for training to recertify for current position prior to her departure. Complainant contends that management scheduled return to duty classes for male co-workers who returned to duty following the same AFGE Negotiator duty to recertify the males for their current positions; 27. on or about January 7, 2016, management failed to submit Complainant’s name to TSA Headquarters as an applicant for selection to TSA National Advisory Committee (NAC), rendering Complainant’s ineligible for NAC; and 28. on January 25, 2016, management intentionally excluded Complainant from email communications with TSA Labor-Management Relations meetings. Complainant asserts when she inquired about being excluded from email communication to the Director, Labor-Management Relations, the Director told her he was doing all that he is required to do and he added, “let’s see how it plays out” which Complainant interpreted as a threatening statement. HS-TSA-00988-2017 Whether Complainant was subjected to harassment based on sex (female), disability, and in reprisal for prior EEO activity when: 5 2019005587, 2019005644 29. on or about December 6, 2016 and January 5, 2017, management denied Complainant’s request for Leave Without Pay (LWOP); 30. on or about December 15, 2016, management denied Complainant’s request for a performance bonus; 31. on or about February 6, 2017, Complainant was notified by AFGE Council President that the TSA Director of Labor Relations divulged her medical history; 32. on or about February 24, 2017, management informed Complainant she would be issued a 5-Day Suspension for being Absent Without Leave (AWOL) and for Failure to Follow Instructions; 33. on or about March 3, 2017, management closed out Complainant’s 2016 performance evaluation and did not rate her; 34. on or about March 9, 2017, management issued Complainant a Proposed 5-Day Suspension; 35. on or about March 16, 2017, Complainant was prevented from performing her on the job training functions when she was given conflicting information on her assignment for the day by management; 36. on or about March 16, 2017, management ignored Complainant’s request for official time; 37. on or about March 24, 2017, management denied Complainant’s request for official time; 38. on or about April 24, 2017, management denied Complainant’s request for official time; 39. on or about May 1, 2017, management denied Complainant’s request for 40 hours of official time to conduct training; 40. on or about May 12, 2017, management denied Complainant’s request for 40 hours of official time to conduct training; 41. on or about May 17, 2017, management denied Complainant’s request for 40 hours of official time; and 42. on or about May 18, 2017, management ignored Complainant’s request for official time to attend Department of Homeland Security (DHS) Labor Council Meeting; 43. on or about May 22, 2017, management required Complainant to re-sign her FY17 performance evaluation; and 6 2019005587, 2019005644 44. on or about August 30, 2018, management made negative comments about Complainant and her request for official time to work on her EEO complaint; and she overheard these comments and confronted management about them, which resulted in an altercation with the Deputy Federal Security Director. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). On June 19, 2019, the AJ issued a decision without a hearing in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To establish a claim of hostile environment harassment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, 7 2019005587, 2019005644 Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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 a protected basis - in this case, her sex, disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. In his decision, the AJ determined there was no genuine issue of material facts in dispute. Specifically, the AJ noted the contentious battles between Complainant and management officials “have been largely fought on the wrong battlefield. The facts show that Complainant is an active union member who has held union office and frequently take official time for union business. Many of her claims relate to union issues, including the numerous claims about the agency’s denials of requests for official time…the contentious relationships between Complainant and the responsible management officials arose from all of the push and pull related to Complainant’s union activities.” The record developed during the investigation fully supports the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the actions in dispute. After careful consideration of all Complainant’s allegations and the evidence of record, there is undisputed evidence to fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for many of the disputed actions. Moreover, to the extent that there was a contentious relationship between Complainant and management officials, it was the result of her union activity. To the extent Complainant can prove she was retaliated against for the union activity, she needs to adjudicate that within the context of an unfair labor practice with the negotiated grievance process and not an EEO complaint. Beyond her bare assertions, Complainant has simply provided no evidence to support her claim that her treatment was the result of her sex, disability or prior protected activity. A case of discriminatory hostile work environment is precluded based on the AJ’s fully supported 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. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment finding no discrimination. 8 2019005587, 2019005644 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 9 2019005587, 2019005644 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 March 30, 2021 Date
