0120093284
05-03-2011
Chantel L. Harris, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Chantel L. Harris,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120093284
Hearing No. 570-2009-00347x
Agency No. HS-08-TSA-004930
DECISION
On July 22, 2009, Complainant filed a timely appeal from the Agency’s
July 7, 2009, 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. The Commission accepts the appeal for de novo
review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.
ISSUES PRESENTED
The issues presented in this appeal are (i) whether the EEOC
Administrative Judge (AJ) properly issued a summary judgment decision; and
(ii) whether the AJ correctly found that the Agency did not discriminate
against Complainant as alleged.
BACKGROUND
On May 14, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of race (African-American)
when she was harassed and subjected to a hostile work environment,
identifying nine issues regarding her removal, grievance activities, and
attendance and leave issues from November 2007, to March 2008.1 Following
an investigation, Complainant requested a hearing before an AJ. On May
29, 2009, the Agency filed a Motion for Partial Dismissal and Motion for
a Decision Without a Hearing (Motion). On June 23, 2009, the AJ issued
a decision without a hearing, granting the Motion in favor of the Agency
and finding that it did not discriminate against Complainant as alleged.
The Agency issued a final order agreeing to implement the AJ's decision.
The record shows that, at the time of events giving rise to this
complaint, Complainant had worked as a Transportation Security Officer
at the Agency’s Washington National Airport facility in Washington,
D.C. for about five years. During her tenure, the Agency disciplined
Complainant on 14 occasions for unexcused absences and abuse of
leave procedures; in 2007-2008, managers concluded that she had become
unreliable. In early 2008, the Agency gave her notice of its intention
to terminate her, and she was subsequently terminated. Complainant did
not dispute the facts of her absences but explained that she had to care
for her children who had chronic asthma.
The AJ concluded that summary judgment was appropriate in this case,
because Complainant did not show that genuine issues of material fact or
issues of credibility existed. The AJ explained the legal analysis for
claims of harassment and found that the events identified by Complainant
were not sufficiently severe or pervasive to rise to the level of illicit
harassment. Further, he found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions and that she failed to
demonstrate pretext.
CONTENTIONS ON APPEAL
On appeal, Complainant did not address the AJ's specific findings as
adopted by the Agency. The documents she submitted largely consist
of her explanations and justifications for her attendance difficulties
and discipline.2 The Agency did not submit comments in opposition to
Complainant's appeal.
ANALYSIS AND FINDINGS
In this matter, to prevail on her claim of harassment, Complainant must
show that she was subjected to a hostile work environment because of
her race. To establish a claim of 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 (race); (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.
A claim of harassment is actionable if it is sufficiently severe or
pervasive sufficient to alter the conditions of Complainant's employment.
In determining whether the alleged harassment created a hostile work
environment, all of the circumstances of the work environment must
be considered, including the frequency of the discriminatory conduct;
its severity; whether it was physically threatening or humiliating; and
whether it unreasonably interfered with Complainant's work performance.
Unless the conduct complained of is severe, however, the Commission has
held that a single incident or group of isolated incidents will not be
regarded as discriminatory harassment. Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996); see Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors (October 17, 2002).
Complainant acknowledged that she was often absent and could not
dispute the fact that she had been previously disciplined by the Agency.
Moreover, she acknowledged that she never heard racial comments or had
any documents revealing racial animus. We find that Complainant has not
shown that she was harassed and/or subject to a hostile work environment.
The incidents she raised were not “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); Enforcement Guidance on Harris v. Forklift Systems
Inc., at p. 6 (March 8, 1994). We also find no persuasive evidence that
her race played a role in these matters.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ’s decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.3 See Petty v. Dep’t of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency’s final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____5/3/11______________
Date
1 Complainant also claimed discrimination based on parenting status;
however, parenting status is not a protected class within the Commission's
jurisdiction.
2 Among her many documents, she also included an unsigned June 19, 2009
motion to the AJ to compel the Agency to provide more specific answers
during discovery. Because the document is unsigned and Complainant did
not discuss it on appeal, we are unsure why Complainant provided it to
the Commission or if it were ever provided to the AJ. Nevertheless, we
note the AJ’s statement that “[b]oth parties had the opportunity to
engage in discovery.” She also provided what appears to be a June 22,
2009 opposition to the Agency’s motion for a decision without a hearing.
The document, which is titled “Complainant’s Motion to proceed with
a Trial and a Motion for a Decision to be made at a Hearing,” is dated
July 22, 2009. Therefore, it appears that it was never provided to the
AJ, whose decision is dated June 23, 2009.
3 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120093284
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093284