Earlie P.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Nov 17, 2020

2019004759 (E.E.O.C. Nov. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Earlie P.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019004759 Hearing No. 480-2016-00031X Agency No. HS-TSA-00143-2015 DECISION On July 2, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 28, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not discriminated against and subjected to a hostile work environment based on her sex (female) regarding, amongst other things,denial of a seniority shift bid; accusations of performance infractions; a lower performance rating; and reassignment to a checkpoint. 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. 2019004759 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer (STSO), G-Band at the Agency’s McCarran International Airport facility in Las Vegas (LAS), Nevada. On January 31, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) as evidenced by the five allegations that form the crux of her complaint. Claim 1: In October 2014, Complainant was denied her seniority shift bid when she was forced to bid to work on the checkpoint. Complainant alleged that she was discriminated against when she was denied her seniority shift bid, forced to bid to work on the checkpoint, and ultimately reassigned from baggage to the checkpoint, all due to management's requirement of a 50/50 ratio of male and female supervisors on the checkpoint. Complainant asserted that all the male supervisors who wanted to stay in baggage were allowed to do so, including a number of males who were well below her in seniority. She alleged that her sex was a factor in her being required to bid on the checkpoint because it was the policy requiring a 50/50 ratio of males and females at the checkpoint that caused her to be forced to the checkpoint. Complainant maintained that there was virtually no reason for this requirement; and that it unfairly impacted female supervisors who wanted to stay in baggage. Complainant stated that she hated working at the checkpoint, explaining that she had started her career in baggage and felt more comfortable there. Complainant stated that she had been pulled up to the checkpoint three times in the past, and this was going to be the fourth time. Complainant acknowledged that three other female supervisors were permitted to remain in baggage, indicating that she was singled out and forced to switch from baggage to the checkpoint due to the new policy. The Federal Security Director (FSD), affirmed by the Deputy Federal Security Director-Screening (DFSD-S), explained that consistent with Agency policy in TSA Management Directive (MD) 1100.61-4 regarding seniority and scheduling, management was allowed the discretion to use gender balance where required on specific shifts, and to assign personnel to non-requested shifts, days off, or work areas. FSD noted that for the bid shift in question, the ratio was less than 50/50, specifically 46 males and 32 females, for the checkpoint. Therefore, dual-certified STSOs (including Complainant) even if they had previously worked in baggage, had to fill the vacancies. FSD indicated that when Complainant expressed that she felt the applicable policy was discriminatory, FSD requested that the then Assistant Federal Security Director (AFSD) speak with Complainant to discuss Agency policy, operational needs, and how that impacted the bid schedule. FSD stated, and the former AFSD affirmed, that bids were constructed based on operational needs, not individuals; and that all bid guidelines and procedures were followed in the bid development process. 2019004759 3 A Program Specialist (PS1) provided witness testimony, stating that Complainant was only able to bid on available dual function supervisor bid lines based on her seniority. He noted that baggage screening was not based on gender, but the checkpoint was, even for supervisors, because they counted as an Officer in the operation and had to conduct pat-downs on female passengers. Claim 2: In October 2014, during the shift bid, the Scheduling Operations Officer (SOO) told Complainant that if she did not bid to work on the checkpoint, he would white-out her name on the bid and place Complainant's bid wherever he wished. Complainant alleged that SOO made the stated comments when she asked what would happen if she put her name in baggage where her seniority landed. Complainant stated that she was in shock and embarrassed at those comments; and that she did not really respond, adding that she had no choice but to put her name on a checkpoint bid line. Complainant maintained that she reported SOO’s comments to DAFSD-S. Complainant asserted that her sex was a factor in SOO’s making the alleged comments because only female supervisors were impacted by the policy; and that male supervisors were allowed to bid on baggage. SOO denied making the alleged comments, asserting that he informed Complainant that he would have to remove Complainant's name if she signed her name on a baggage line since that was not an available option for her. SOO stated that he explained to Complainant that there was a procedure in place in which if an individual chose not to bid, after the bid was complete, that individual was assigned to whatever bid line was left over. SOO clarified that the scheduling personnel did not put people anywhere they wanted, asserting that placement was based on what was left. Claim 3: In October 2014, during Complainant's performance review, the Transportation Security Manager (TSM1) accused Complainant of the following: refusing to work on the checkpoint, not being a team player, being a bad supervisor, and lacking the ability to perform her job. Complainant alleged that on the day of her October 2014 performance evaluation, TSM1 (who Complainant stated had not spoken to her all year about her performance), accused her of refusing to work on the checkpoint, not being a team player, being a bad supervisor, and lacking the ability to perform her job. Complainant expressed her dissatisfaction with her final rating of "Exceeds Expectations." Complainant acknowledged that she had no basis for believing that her sex was a factor in TSM1's comments. Complainant indicated that she did not want to make the accusation that her sex was a factor in the alleged incident but that she did not feel TSM1 gave her a fair shot. TSM1 recalled the conversation with Complainant, confirming that he referenced Complainant not wanting to go to the checkpoint. TSM1 explained that on several occasions, he asked Complainant to go to the checkpoint, and she asked if there was anyone else who could go instead, leaving TSM1 in the position of finding another supervisor to go. 2019004759 4 TSM1 did not recall using the term "team player" during the conversation. He denied stating that Complainant was a "bad supervisor," pointing out that he would have given her an Unacceptable rating had he felt that way. TSM1 stated that he followed TSA guidelines in giving Complainant the performance rating. Claim 4: In October 2014, Complainant received a lower rating on her annual performance evaluation that prevented Complainant from receiving a performance bonus or increase in pay. Complainant alleged that due to the level 4 performance rating that TSM1 gave her, she did not qualify for any in-position increase (IPI) or bonus. Complainant asserted that the rating was lower than what she deserved because she should have been rated high enough to merit an IPI and bonus. Complainant stated her belief that her score in Mentoring should have been higher. Complainant indicated that TSM1 stated that she needed to do more mentoring but that she had taught a supervisor who, Complainant explained, was brand new to the checkpoint about procedures, maintenance, and equipment calibrations. Complainant added that she taught the new supervisor how to complete the paperwork properly, including making rotations. Complainant maintained that she did not receive a mid-year review; and that she never received a paper copy of her performance evaluation, noting that at the time of filing the instant complaint, Complainant still had not read the whole evaluation. Complainant asserted that she heard that another female supervisor was also rated lower; and that several male supervisors were rated higher. Complainant alleged that her sex was a factor in how TSM1 rated her performance because TSM1 had a long history of problems with females in authority. She explained that she did not have any direct knowledge of such a history but there were rumors that TSM1 had been caught fooling around with females; and that he had been in trouble in the past. TSM1 stated that Complainant’s overall performance rating was 3.52, Exceeded Expectations. He explained that he rated Complainant based on the Headquarters-approved evaluation criteria available; and that all bonuses were distributed based on a percentage which was established by Headquarters. TSM1 stated that regarding the mentoring element, he rated Complainant’s performance level in accordance with the guidelines. He maintained that the new supervisor to whom Complainant referred had been a supervisor for several years; and TSM1 had no knowledge of Complainant having mentored him. TSM1 denied that he rated his male subordinates higher generally than his female subordinates, reiterating that he followed the guidelines developed by Headquarters for rating each employee’s performance. He asserted that Complainant’s sex was not a factor in how he rated her performance. Claim 5: In November 2014, Complainant was reassigned from the baggage area to work on the checkpoint because management required a 50/50 ratio of males and females on the checkpoint. 2019004759 5 Complainant alleged that based on Management’s implementation of the policy alluded to in Claim 1, she was reassigned to the checkpoint. SOO explained that in 2014, the airport experienced attrition in female supervisors at the checkpoints, resulting in vacant female STSO shifts. He added that management selected female workers to work at the checkpoint so that they could perform pat-down screening of female passengers. The AFSD-S provided supporting testimony, adding that for the reasons explained by SOO, TSA Management Directive 1100.61-4 permitted FSD to consider gender balance for shift bids. AFSD added that the normal operation at LAS requires that female TSOs and STSOs work with female passengers at airports because of the Operations Directive; reiterating that part of TSA’s operational requirement is to provide passengers with a same gender screening pat-down. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On March 27, 2019, the assigned AJ dismissed the complaint from the EEOC hearing process and remanded it to the Agency to issue a FAD, due to Complainant's non-compliance with the AJ's Orders; and for failure to prosecute her complaint. 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 Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant reiterates her allegations, asserting that the Agency relied on falsified information in its FAD. Complainant requests that a hearing be ordered in her case, stating that the FAD is nothing more than a continuation of discrimination against Complainant and must be overturned so that justice is obtained. The Agency did not submit an Appeal Brief. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2019004759 6 ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, a 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 initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination and hostile work environment based on sex; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. Regarding Claims 1 and 5, FSD, DAFSD-S, and SOO all explained that consistent with Agency policy, Complainant was denied her seniority shift bid and ultimately reassigned to the checkpoint because as a dual-function officer, not baggage only, Complainant had to bid on a dual line which included checkpoint. They also explained that during the time at issue, the airport experienced attrition in female supervisors at the checkpoints, resulting in vacant female STSO shifts; and that female workers were selected to work at the checkpoint so that they could perform pat-down screening of female passengers. The record is devoid of any evidence that the 50/50 ratio was applied disproportionately to males and females. Besides, the Commission has posited that employers generally have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority, absent evidence of unlawful discriminatory motivation. Burdine, 450 U.S. at 248; Schnake v. Department of Agriculture, EEOC Appeal No. 01965915 (1998). Here, the record is devoid of any indication that management’s decision to reassign Complainant was motivated by discriminatory animus due to her protected class and not based on what appears to be a nondiscriminatory personnel decision. Regarding Claims 3 and 4, TSM1 explained that Complainant’s lowered performance rating was based on her performance during the period at issue. Complainant did not refute TSM1’s explanations, only asserting that he had been unfair; and that TSM1 had a long history with female supervisors. Complainant presented no evidence, however, to corroborate her assertions. In an effort to show pretext, Complainant refuted management’s explanations, asserting that male STSOs, including some who ranked lower than herself, were allowed to remain in baggage. 2019004759 7 PS1 also indicated that it was probably correct that the male supervisors who wanted to stay in baggage were allowed to do so. Complainant also asserted that bias, not management’s stated reasons, led to her reassignment. However, Complainant acknowledged that female STSOs were also allowed to remain in baggage. Finally, the record makes clear that since there was an imbalance due to a lack of available female STSOs, that male STSOs were not needed at the checkpoints at that time. SOO denied making the comments attributed to him in Claim 2, asserting that he was only explaining the applicable procedures to Complainant regarding her schedule options. SOO’s explanations were affirmed by all responding management officials and PS1, who witnessed the incident at issue in Claim 2. We find that while Complainant may dispute management’s actions, and while she may have preferred to remain in baggage where she started her career, she has failed to describe any verbal or physical management conduct that meets the requisite level of severity or pervasiveness to constitute actionable harassment. Instead, Complainant’s allegations involve routine work assignments, instructions, and admonishments that do not rise to the level of discriminatory harassment. See DiFruscio v. Social Security Administration, EEOC Appeal No. 01982006 (Sept. 13, 2000); Wolf v. U.S. Postal Service, EEOC Appeal No. 01961559 (Jul. 23, 1998); and Bennett v. Department of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000). We also find no bases to reverse the AJ’s dismissal of Complainant’s hearing request because that was a sanction for Complainant's failure to comply with the AJ’s order. Neither do we find any persuasive evidence to support Complainant’s assertions that management relied on falsified information in its FAD. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2019004759 8 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, 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). 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. 2019004759 9 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 November 17, 2020 Date