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

Equal Employment Opportunity Commission

Mar 14, 2014

0120113855 (E.E.O.C. Mar. 14, 2014)

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. 0120113855

Hearing No. 570-2009-00881X

Agency No. HS-09-TSA-000902

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 12, 2011 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’s review is de
novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer at Ronald Reagan Washington National Airport in Arlington, Virginia.
Around October 2, 2008, Complainant and a co-worker (CW1) had a verbal altercation. The
Transportation Security Manager (TSM) investigated the incident and collected statements
from witnesses. TSM determined that both employees were at fault and took no disciplinary
action against either. Instead, TSM discussed with both employees the importance of working
together and acting professionally at all times.

In November 2008, another co-worker (CW2) filed a complaint against Complainant alleging
that Complainant acted unprofessionally towards her. The Acting Assistant Federal Security
Director for Screening (AFSD) reviewed security video footage and determined that
Complainant had done nothing wrong. As a result, CW2 withdrew her complaint.
Complainant later learned of the complaint and AFSD’s investigation and complained that she
was not allowed to participate in the process. AFSD informed Complainant that she was not
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interviewed because the initial fact-finding showed that she was not at fault, and there was no
need to conduct an investigation because CW2 withdrew her complaint.

On November 13, 2008, Complainant was seen talking to a co-worker (CW3) at the exit lane
for almost 30 minutes away from her assigned duty of performing unpredictable screening.
The next day, CW3 complained that Complainant had put her finger in his face and taunted
him. The Deputy Assistant Federal Security Director (DAFSD) investigated the incident.
After reviewing security video footage and interviewing witnesses, DAFSD issued
Complainant a three-day suspension for Inattention to Duty for being away from her assigned
duty post.

On December 29, 2008, Complainant failed to report for her scheduled shift and failed to
timely notify the Security Coordination Center in violation of the Agency’s call-out
procedures. As a result, Complainant was charged with absence without official leave
(AWOL) for that day. Complainant and AFSD met on January 6, 2009, to discuss
Complainant’s conduct, and Complainant explained that she woke up late at night with back
pain, took medication, and slept through her shift. Complainant further stated that she called
in as soon as she could. AFSD did not consider Complainant’s excuse to be convincing as she
noted that Complainant had a long range of time to call before she took her medication and fell
asleep. Based on Complainant’s prior disciplinary history, AFSD issued Complainant a Notice
of Proposed Removal on January 16, 2009. AFSD ultimately rescinded the proposed removal
and issued her a three-day suspension instead.

On February 16, 2009, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination and a hostile work environment in reprisal for prior protected
EEO activity when:

1. On October 7, 2008, management failed to properly investigate a threat made
against her by a co-worker;

2. In October and November 2008, management conducted a private investigation into
a complaint that was filed against her without her knowledge;

3. On November 14, 2008, management officials made false statements against her;

4. On January 6, 2009, she was issued a three-day suspension; and,

5. On January 16, 2009, she received a letter of proposed termination.1

1 The Agency dismissed several additional claims pursuant to 29 C.F.R. 1614.107(a)(2) as
untimely. In her January 4, 2010 Order, the Administrative Judge noted the Agency’s
dismissal of these claims and informed the parties that she would only adjudicate the accepted
hostile work environment claim unless either party objected. When neither party objected, the
AJ only addressed the accepted hostile work claim in her decision. Notwithstanding the AJ’s

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted the Agency’s motion for summary judgment and issued a decision on June 21,
2011.

In her decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to claim (1), TSM investigated the incident between
Complainant and CW1 and determined that the incident amounted to “two adults who were
having a war of words with each other” and that both were to blame. Ultimately, TSM did not
take any action against Complainant or CW1. With respect to claim (2), AFSD explained that
Complainant was not informed of the complaint or interviewed because the initial fact-finding
demonstrated that Complainant was not at fault. Consequently, there was no need to conduct a
formal investigation because CW2 withdrew her complaint.

Regarding claims (3) and (4), Complainant was observed on November 13, 2008, talking to
CW3 at the exit lane from 0432 to 0459 hours when she had been assigned to perform
unpredictable screening on Terminal A checkpoint from 0430 to 0500 hours. DAFSD
interviewed witnesses, met with Complainant twice to acquire facts, informed her of the
allegations and evidence, and permitted her an opportunity to respond. Ultimately, a security
video footage confirmed that Complainant had been speaking to CW3 at the exit lane while she
was assigned in another area. As a result, Complainant was issued a three-day suspension for
Inattention to Duty for being away from her assigned duty post.

Finally, as to claim (5), AFSD determined that Complainant’s failure to report for her shift and
failure to call in until her shift was over violated the Agency’s leave procedures and warranted
termination. AFSD subsequently rescinded the proposed removal and issued her a three-day
suspension.

The AJ concluded that Complainant failed to establish that the Agency’s reasons for its actions
were pretext for reprisal. As a result, the AJ found that Complainant had not been subjected to
reprisal or a retaliatory hostile work environment as alleged. The Agency subsequently issued
a final order adopting the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in granting summary judgment in favor of the
Agency as material facts remain in dispute. Complainant contends that the alleged incidents as
she stated are true and that she deserves the opportunity to have a hearing before an AJ.
Further, Complainant argues that she has been denied fairness and the opportunity to give a

treatment of the dismissed claims, the Commission will consider them in this decision as
background evidence in support of Complainant’s hostile work environment claim.
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true account of what happened. Accordingly, Complainant requests that the Commission
reverse the final order.

ANALYSIS AND FINDINGS
The AJ's Issuance of Summary Judgment

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). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and evidentiary standards that apply
to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is
not to weigh the evidence but rather to determine whether there are genuine issues for trial.
Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255.
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.
Upon review of the record, the Commission determines that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ's issuance
of summary judgment was appropriate. The Commission finds that, even assuming all facts in
her favor, a reasonable fact finder could not find in Complainant's favor, as explained below.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on her prior protected EEO activity, she was
continuously subjected to a hostile work environment. Complainant has cited several incidents
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where Agency management took actions that seemed adverse or disruptive to her including
investigations into altercations she had with co-workers; being suspended; and being issued a
proposed termination. Construing the evidence in the light most favorable to Complainant, the
Commission finds that she has not shown that any of the alleged actions were unlawfully
motivated by her prior protected EEO activity. Even assuming that the conduct alleged was
sufficiently severe or pervasive to create a hostile work environment, Complainant failed to
show that any of the alleged incidents were based on retaliatory animus. Additionally, to the
extent that Complainant is alleging disparate treatment with respect to her claims, the
Commission finds that she has not shown that the Agency's reasons for its actions were a
pretext for reprisal. As a result, the Commission finds no basis to disturb the AJ's summary
judgment decision finding that Complainant was not subjected to reprisal or a hostile work
environment as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Administrative Judge’s grant of summary judgment in
favor of the Agency was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.

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.
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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

Date
March 14, 2014