Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

May 28, 2015

01-2013-2397-0500 (E.E.O.C. May. 28, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120132397

Agency No. HS-TSA-22288-2012

DECISION
On June 5, 2013, Complainant filed an appeal from the Agency’s May 9, 2013 final decision
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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
Complainant worked as the Executive Assistant to the Federal Security Director (FSD) at
Newark Liberty International Airport facility in Newark, New Jersey. On June 4, 2012, she
filed an EEO complaint in which she alleged that the FSD had discriminated against her on the
bases of race (mixed heritage), sex (female), color (light-skinned), age (42), and in reprisal for
prior EEO activity in connection with nine incidents that occurred between April 2010 and
April 2011. At the conclusion of the ensuing investigation, the Agency provided Complainant
with a copy of the investigative report (IR) and notice of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge. In accordance with
Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the FSD had
subjected her to discrimination as alleged.

Complainant initially alleged that between April 20 and November 29, 2011, the FSD stared at
her chest and crotch areas in a manner that made her feel uncomfortable, self-conscious, and
depressed. IR 97-98. The FSD denied this allegation. IR 142-43.
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Complainant next alleged that between April 21 and November 29, 2011, the FSD reassigned
her various projects to other employees without giving her a reasonable explanation for doing
so. She averred that the FSD had gradually taken away all of the special projects that had been
assigned to her and had left her only with answering the telephone, coordinating the FSD’s
calendar, and tracking his expenses. IR 100-02. The FSD testified that the Newark Airport
Office had numerous performance issues, and that he was appointed to his position with four
days notice and a mandate to increase the office’s efficiency. He acknowledged that
Complainant had been given special projects under the previous FSD but denied that he had
taken any responsibilities away from Complainant. Rather, he had taken a “hands-on”
approach to managing the office, which, in Complainant’s case, meant adjusting her workload
in order to maximize her productivity. The FSD averred that Complainant failed to follow up
on preparing structured document staffing processes and designing staff action summary sheets
that he had requested, and that she did not follow through on other tasks that he had asked her
to complete. IR 143-47.

Third, Complainant alleged that sometime in June 2011, the FSD, an African-American, said
to her, “The only people to give me a chance were older white men.” IR 102-03. The FSD
averred that he never made that statement to Complainant, that he never used that language or
harbored that type of attitude. IR 147.

Fourth, Complainant alleged that in mid-August 2011, the FSD, in the presence of the Deputy
FSD, told her to mind her own business in responding to her inquiry regarding ethics issues
surrounding acceptance of gifts. She averred that when she spoke to the FSD regarding gift-
giving guidelines from the Agency’s code of conduct, he replied, “you are overreacting and
need to mind your own business.” She also averred that the FSD snatched a box of chocolates
out of her hand and walked away. IR 103-05. The FSD testified that such a confrontation
never occurred, and that on August 11, the date of the incident, the staff had thrown him a
surprise birthday party, and that Complainant had given him a card and a piece of chocolate
from a Transportation Security Inspector (TSI). According to the FSD, Complainant had told
him that the TSI “liked him,” and that he let it be known to Complainant that he did not get
involved in those types of situations in the workplace. IR 147-48.

Fifth, Complainant alleged that on November 21, 2011, when she reported unethical gift
giving to the Supervisory Counsel (SC), the SC told her that it was in her best interest not to
tell anyone about it. She averred that the SC had summoned her to his office to discuss an
EEO complaint filed by the TSI in which Complainant had been named as a responding
management official. She further stated that she had told the SC about the TSI giving gifts to
the FSD and spending an inordinate amount of time with the FSD in his office. IR 105-08.
The FSD characterized what Complainant had told the SC about him as a “complete
fabrication.” IR 148-49. The SC testified that Complainant had walked into his office to
discuss the Complaint filed by the TSI. When Complainant told him about the alleged
relationship between the TSI and the FSD, SC advised her that it would be best if she did not
make such an accusation if she did not have any evidence to corroborate her claims. IR 168.

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Sixth, Complainant alleged that on November 23, 2011, the FSD told her that her sisters
would not allow her to cook Thanksgiving dinner because she was not trustworthy. She
averred the FSD had found out that she had a different father than her sisters and that she
understood his comment to reflect his belief that she was the odd one out of the family because
of her mixed-race heritage. IR 108-09. The FSD denied that he had ever had that
conversation with Complainant, and that the only thing he knew about Complainant’s family
was that she had a sister, a nephew and a mother who worked for the Port Authority. IR 149.

Seventh, Complainant alleged that on January 14, 2012, the FSD stared at Complainant in a
threatening manner when they were both in a parking lot outside the workplace. Complainant
filed a police report in which she stated that she was entering her car, she noticed her boss
standing at the front of the car giving her a dirty look. IR 109-11, 211. FSD averred that on
January 14, 2012, he had left the office late, drove home and parked his car in the lot that
serviced his condominium complex. He further testified that the lot was surrounded by several
businesses, and that he saw Complainant with another person approximately 40 feet away. He
also stated that he immediately looked away from Complainant in order to avoid making eye
contact with her, noting that on November 29, 2011, he had placed her on administrative leave
pending a removal action. IR 149-50.

Eighth, Complainant alleged that on March 29, 2012, the FSD placed her in a workstation
without supplies or a telephone, took away her access to the FSD suite and second-floor
offices, and prevented her from receiving in-position increases and bonuses. IR 111-16. The
FDS testified that he had proposed her removal on November 29, 2011, on charges of abuse of
position, improper alteration of an official document, and lack of candor. He placed her on
administrative leave for 30 days and allowed her to telework afterword. Pursuant to
mediation, the FSD withdrew the removal request and agreed to allow Complainant to return
to work. Complainant would be assigned to a work area in the training center, but would still
be allowed to access the FSD office suite area. She had supplies in her new work area, and
after a short delay, her telephone and desktop computer were configured for her. IR 150-59,
177, 79, 187, 193, 206.

Finally, Complainant alleged that on April 9, 2012, the FSD refused to allow her to return to
her previous duty station in the FSD suite. She averred that the FSD told her that because of
what had transpired between them, it would be better for him and for the organization that she
not be in the FSD suite. IR 117-19. The FSD, the Deputy FSD, and the Training Manager,
all of whom were present at staff meeting that had been convened on April 9th

to resolve the
situation, testified that Complainant’s detail to the training section was consistent with her job
description and would constitute the way to best utilize Complainant’s skills and abilities. The
FSD averred that he never told Complainant that he did not want her around. Rather, he
maintained that it was in the best interests of the organization that Complainant be assigned to
the training area. IR 160-62, 179-80, 193-95, 209, 238-41, 243.

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ANALYSIS AND FINDINGS
Since Complainant raises a hostile environment claim, she must prove, by a preponderance of
the evidence, that the FSD was motivated by unlawful considerations of her race, color sex,
age, or previous EEO activity in connection with the discrete and non-discrete incidents
comprising her claim. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); Wibstad v. U.S. Postal Service

, EEOC Appeal No. 01972699 (Aug. 14, 1998). If
Complainant fails to establish the existence of a discriminatory or retaliatory motive on the part
of the FSD, the Commission will not need to address whether any of those incidents are severe
or pervasive enough to rise to the level of harassment or whether they constitute separate acts
of discrimination in and of themselves.
The FSD articulated legitimate reasons for all nine incidents described in the complaint. His
affidavit testimony concerning incidents (2), (5), (8), and (9) is consistent with that of the
Deputy FSD, the Training Manager, and the SC, and has been corroborated by
contemporaneously prepared memoranda documenting the occurrences. With respect to
incidents (1), (3), (4), (6), and (7), which concern various statements and gestures by the FSD,
the evidence is not sufficient to establish that the FSD had even made the statements or
engaged in the conduct that Complainant attributes to him.

While Complainant asserts that the actions taken by FSD were discriminatory, she has not
presented any sworn statements from other witnesses or documents that contradict the
explanations provided by the FSD, or which call his veracity into question. It is Complainant’s
burden to establish the existence of an unlawful motivation on the part of the responding
management official by a preponderance of the evidence, and more is required to meet that
burden than merely expressing one’s belief. We therefore find, as did the Agency, that
Complainant failed to meet her burden of proof as to the existence of a discriminatory or
retaliatory motive on the part of the FSD with respect to any of the incidents at issue in her
complaint.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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:

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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
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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

Date
May 28, 2015