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

Equal Employment Opportunity Commission

Mar 9, 2015

0120132868 (E.E.O.C. Mar. 9, 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. 0120132868

Hearing No. 480-2012-00092X

Agency No. HSTSA001962011

DECISION
On July 30, 2013, Complainant filed an appeal from the Agency’s June 26, 2013 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 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 order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Transportation Security Officer at the Los Angeles International Airport in Los Angeles,
California. On June 7, 2010, Complainant was involved in an incident with a co-worker
(CW1) during which Complainant referred to CW1 in a manner that CW1 found offensive.
The Agency disciplined Complainant with a 7-day suspension as a result of the incident.

Witnesses differ as to the term Complainant used to refer to CW1 during the incident.
According to CW1, Complainant referred to CW1 as a “heffa” or “heifer,” i.e

., a cow.
Complainant denies using the word “heifer” but acknowledges that she may have used the
similar sounding Spanish term “jefa,” meaning female chief or boss, during the confrontation
with CW1.
On January 15, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) when she
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was issued a 7-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 EEOC Administrative Judge (AJ).

Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to
the case granted the Agency’s motion for summary judgment and issued a decision on May 29,
2013. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged. From
that order Complainant brings the instant appeal.

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). 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. For the reasons set forth below, we find that there is no genuine issue
of material fact presented here.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
In this case, the Agency explains that Complainant was suspended because she engaged in
“unprofessional conduct involving inappropriate remarks to coworkers.” According to the
Agency, the suspension was appropriate because Complainant was a supervisor and had a
history of unprofessional behavior. This is a legitimate, nondiscriminatory reason for the
Agency’s actions.

Complainant counters that she did not use the term “heifer” but rather may have referred to
CW1 using a Spanish term meaning female boss. Even if true, this would not establish that the
Agency’s explanation for its actions was a pretext designed to conceal discriminatory animus.
The undisputed evidence shows that Complainant engaged in a hostile and unprofessional
interaction with CW1 during the incident in question. Even if the official who disciplined
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3
Complainant was mistaken about the exact term Complainant used in referring to CW1, this
would not establish pretext. The record shows that the Agency had a good faith belief that
Complainant had engaged in misconduct. Foley v. U.S. Postal Serv., EEOC Appeal No.
01924615 (Mar. 26, 1993) (“a mistaken, good faith belief

in the rationale for a particular
action is not pretextual”).

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final
agency 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).
0120132868

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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

Date
March 9, 2015