0120103696
08-29-2012
Karen A. Moulton, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Karen A. Moulton,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120103696
Hearing No. 510-2009-00057X
Agency No. HS07TSA002494
DECISION
On September 13, 2010, Complainant filed an appeal from the Agency's August 11, 2010 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.
PROCEDURAL BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer (LTSO), SV-1802-F, at the Southwest Florida International Airport in Fort Myers, Florida. On January 18, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (51), and in reprisal for prior protected EEO activity when: (1) on September 5, 2007, Complainant received a Letter of Counseling (LOC) notifying her of her transfer to checkpoint duties; (2) on February 12, 2008, a Transportation Security Administration (TSA) attorney questioned Complainant about her allegation that several coworkers subjected her to unlawful conduct; (3) in February 2008, management officials denied Complainant the opportunity to bid on regular days off; (4) in February 2008, management officials interviewed Complainant's coworkers in reference to her personal business and relationship with another coworker; and (5) in February 2008, management officials held meetings to discuss "how to keep Complainant and [her co-worker] separated," and instructed another supervisor to "monitor and report back Complainant's conduct."
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 but subsequently withdrew her request. Consequently, 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.
FACTUAL BACKGROUND
The record shows that on September 5, 2007, the Transportation Security Manager (TSM) issued a LOC to Complainant because of acts of favoritism displayed toward a subordinate male employee (C1). The LOC noted that on December 19, 2006, two Supervisor Transportation Security Officers (STSO1) and (STSO2) discussed with Complainant the perception among several airport personnel that she had displayed favoritism toward C1, a subordinate with whom Complainant was known to have a close personal friendship. The LOC further noted that the supervisors reminded Complainant of her responsibilities as a Lead Transportation Security Officer and suggested a plan to reflect a professional demeanor when dealing with her subordinates. The LOC further noted that on April 17, 2007, STSO2 observed that Complainant changed the work rotation of C1 which reduced his time as an On Screen Alarm Resolution Protocol (OSARP) Operator which could be perceived as favoritism toward a subordinate. The LOC further noted that Complainant was instructed to follow the rotation plan and ensure her subordinates get their allotted time performing OSARP. In addition, the LOC stated that Complainant was specifically instructed not to independently alter the schedule as it affected C1. The LOC also noted that on July 15 and 16, 2007, STSO2 observed Complainant and C1 driving to ADSAP1 Gate screening for the second day in a row, which according to the LOC can be perceived as favoritism toward a subordinate, as the assignment should be rotated equally.
Complainant claims that she did not recall changing C1's rotation on April 17, 2007. However, even if she did, she asserts that it was not unusual to move Lead Transportation Security Officers (LTSOs) on a daily basis. She further claims that all LTSOs, including C1, were removed from rotation daily for lunches, breaks, and other matters. Moreover, she asserts that the OSARP operator assignment was in an air-conditioned location and was a "sit-down" job, so she failed to see how she had demonstrated favoritism to C1 by removing him from that post for reassignment to a hot, loud, standing position. She maintains that STSO1 never mentioned anything to her about this incident. Complainant also asserts that she did not recall the July 15 and 16, 2007, incidents mentioned in the LOC. She points out that there was an Agency policy which stated that LTSOs had to take Transportation Security Officers (TSOs) to the gate. Complainant also asserts that she treated all TSOs professionally and did not treat C1 differently than any other TSO under her supervision.
The record also shows that on February 12, 2008, an Assistant Federal Security Director of Law Enforcement (AFSD1) (male, 51) was asked by the TSA Counsel (A1) to conduct an administrative inquiry with regard to a letter that Complainant and C1 had distributed to approximately seven coworkers and supervisors on or about December 21, 2007. Several witnesses testified that they considered the letter to be some kind of threat of retaliation by Complainant and C1 for their complaints about their (C1 and Complainant's) alleged inappropriate behavior. The record supports Complainant's contention that she was not permitted to have her lawyer accompany her during the brief interview about the December 21, 2007 letter. The record also shows that Complainant was not disciplined for her conduct pertaining to the distribution of the December 21, 2007 letter.
Complainant claims that in August 2007, she went to TSM to change her regular days off but he denied her request as being too disruptive. TSM advised Complainant that she would have to wait for a "rebid." The Senior Manager of Checkpoint (SMC) testified that Complainant's request was between the formal seniority bidding process that was held once or twice each year. SMC explained that they did not bump personnel to insert transfers between formal bids. Such a policy would cause untold bumping throughout the workforce every time there is a transfer, which in turn would cause significant morale issues. To the extent that Complainant also asserts that she was denied the opportunity to bid sometime after August, 2007, when her co-workers were also permitted the opportunity to engage in bidding for a change in their regular days off, management denies such allegation.
Complainant also asserts that from about November 2006 through September, 2007, management officials interviewed her coworkers in reference to her personal business and her relationship with C1 and held meetings to discuss how to keep her and C1 separated. Based upon numerous statements from management officials and co-workers, the record supports the finding that management officials and co-workers personally witnessed Complainant and C1 acting in an unprofessional manner which gave the appearance that C1 and Complainant were engaged in a sexual relationship. Moreover, the record supports the conclusion that numerous co-workers complained to management about Complainant's activity and felt that Complainant was displaying favoritism toward C1.
For example, witnesses testified to the following conduct between Complainant and C1. STSO2 and another employee witnessed C1 rubbing Complainant's inner thigh under the table during meetings. Individuals witnessed C1 rubbing hand lotion on Complainant while conducting screening duties. Other witnesses testified to seeing C1 and Complainant holding hands while going to the training room together. One of Complainant's co-workers (LTSO1) testified that Complainant would change the rotation schedule so that she and C1 would get to work in the same location all the time. LTSO1 also testified that she saw C1 and Complainant kissing and holding hands. Moreover, LTSO1 felt as though Complainant treated C1 better than the other TSOs. Another co-worker (TSO1) testified that C1 and Complainant would always have lunch together during a preferred lunch-time slot, even though all TSOs were supposed to rotate their lunch times in order to give everyone a chance to have the preferred lunch-time.
Complainant and C1 adamantly deny the assertion that they ever engaged in unprofessional conduct or that Complainant exhibited favoritism toward C1. Although management officials deny the allegations contained in Claim 4, we find it more likely than not that management officials interviewed Complainant's coworkers in reference to her personal relationship with C1 and held meetings to discuss how to keep Complainant and C1 separated which included monitoring the activities between C1 and Complainant.
CONTENTIONS ON APPEAL
Complainant raises numerous assertions on appeal. Specifically, Complainant asserts that the fact that she changed C1's work rotation to perform ADASP gate screening for two consecutive days is not a legitimate, nondiscriminatory reason for issuing a LOC. Rather, rotational changes to the TSOs work assignments are usual occurrences and supported by applicable policy directives. Complainant also asserts that the Agency failed to produce documentary evidence to show that altering the rotation schedule was against any written policy. Complainant asserts that she was not the only LTSO who regularly changed the work rotation of her subordinates. Complainant also asserts that the Agency failed to show that C1's work assignments were considered preferred assignments. Complainant further states that management failed to place the same restrictions with respect to changing rotation assignments on other LTSOs. In addition, Complainant asserts that transferring her to Passenger Screening Checkpoint was severe, inappropriate and contrary to progressive discipline. In addition, Complainant argues that the Agency failed to provide crucial relevant documentation (e.g., ADASP documentation and copies of rotation sheets) during the pre-hearing stage.
ANALYSIS AND FINDINGS
Disparate Treatment - Claims 1 & 3
The Agency concluded that management officials articulated a legitimate, non-discriminatory reason for issuing the LOC, namely that despite previous verbal warnings, Complainant continued to display acts of favoritism toward C1 and that numerous employees complained about it. Moreover, the Agency concluded that Complainant failed to present sufficient evidence to prove, by a preponderance of the evidence, that the Agency's explanations for the LOC were a pretext for discriminatory or retaliatory motives.
The Agency also concluded that management officials articulated legitimate, nondiscriminatory reasons regarding Complainant's allegation that the Agency denied her the opportunity to bid on regular days off. Specifically, the Agency noted that one of Complainant's supervisors testified that Complainant was not treated differently with respect to bidding regular days off. In addition, the testimonial evidence supports the existence of a chart in public display for all employees to engage in the bidding process on the basis of seniority. The Agency also asserts that Complainant produced no probative evidence of pretext or discriminatory/retaliatory animus on the part of any management official.
Harassment Claim
The Agency concludes that the totality of the evidence fails to show that TSA management officials subjected Complainant to a hostile work environment. Specifically, the Agency notes that the record is devoid of evidence demonstrating that the alleged incidents of hostile work environment (e.g., the LOC, the alleged denial of opportunity to bid regular days off, the interviewing of co-workers about Complainant's relationship with C1, and the February 2008 meetings to discuss Complainant's relationship with C1) were based upon discriminatory or retaliatory animus. Additionally, the Agency concluded that the incidents alleged by Complainant do not, as a matter of law, rise to a level of severity or pervasiveness to establish a hostile work environment.
We agree with the Agency and conclude that Complainant did not present sufficient evidence in the record to support a finding of disparate treatment or hostile work environment on the basis of age, sex or prior EEO activity. We note that Complainant and C1 set forth otherwise uncorroborated assertions pertaining to disparate treatment and harassment, while numerous TSOs and management officials testified with respect to specific instances of inappropriate behavior and favoritism on the part of Complainant toward C1, a subordinate.2 Moreover, the record contains documentary evidence to support STSO2's assertion that Complainant was told to change her behavior on numerous occasions before the LOC was issued.3 We also note that the record does not contain evidence that any other LTSOs engaged in similarly inappropriate behavior. Moreover, we agree with the Agency that the record is devoid of evidence of discriminatory or retaliatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,4 including those not specifically addressed herein, 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:
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
August 29, 2012
__________________
Date
1 The record does not explain what this acronym stands for.
2 For example, both C1 and Complainant testified that numerous co-workers signed a petition shortly after the issuance of the LOC attesting that they had never observed Complainant show favoritism towards C1 and had not suffered any negative consequences or poor morale. However, Complainant does not produce the petition for the record and neither C1 nor Complainant identifies a single individual who allegedly signed the petition.
3 The record contains several "memos for the file" which contemporaneously document verbal warnings given to Complainant by STSO2 prior to the issuance of the LOC.
4 We disagree with Complainant's assertion on appeal that she was treated differently than similarly situated comparison employees. The record is devoid of evidence that any other LTSO engaged in preferential treatment toward a subordinate or that employees were complaining of preferential treatment by another supervisor toward a subordinate. We also note that contrary to Complainant's assertion, the record contains documentary evidence showing that Agency policy prohibits disparate treatment or favoritism on the part of a supervisor toward a subordinate employee. Lastly, we find unpersuasive the assertion that the Agency failed to produce various documents during the pre-hearing stage, since Complainant chose to withdraw her request for hearing and the investigative file was adequately developed.
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01-2010-3696
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013