0120142240
10-19-2016
Kina V.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kina V.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120142240
Hearing No. 470-2012-00226X
Agency Nos. HS-TSA-00928-2011 and HS-TSA-22709-2012
DECISION
On June 3, 2014, Complainant filed an appeal from the Agency's April 23, 2014, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant did not demonstrate that she was subjected to sex discrimination, reprisal, and/or a hostile work environment when she was excluded from various meetings and subjected to an investigation.
ISSUE PRESENTED
The issue presented is whether the Equal Employment Opportunity Commission Administrative Judge (AJ) erred in finding that Complainant did not demonstrate that she was subjected to discrimination, reprisal, and/or a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Federal Security Director for Regulatory (AFSD-R), SV-1801, J-Band at the Agency's Dayton International Airport in Vandalia, Ohio. As the AFSD-R, Complainant managed the Regulatory Compliance Department, and was responsible for the "planning, development, implementation, administration, and evaluation of critical inspection programs for compliance of persons and transportation." Complainant was responsible for a team of Transportation Security Inspectors who inspected, tested, and interviewed regulated aviation entities and air carriers. The employees in the Regulatory Compliance Department did not screen passengers or baggage, and they did not work at the passenger checkpoints at the airport. Complainant argued that she was undermined and excluded from many meetings that affected her unit. She also maintained that she was subjected to an investigation when an anonymous individual reported that she made a discriminatory comment.
On May 5, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
HS-TSA-00928-2011
1. On or about February 7, 2011, she learned from the Federal Security Director that she was never informed about or allowed to participate in an exit lane meeting about the process for new exit lane security cameras and monitors.
2. On or about February 7, 2011, she was excluded from handling an incident involving two unattended vehicles that were perceived as a potential threat.
3. On March 1, 2011, the Federal Security Director deliberately excluded Complainant from the construction meeting discussing the new in-line baggage system.
4. On or about March 8, 2011, the Federal Security Director bypassed Complainant and undermined her authority in responding to a change in condition request form from the Airport Chief of Police.
5. On March 8, 2011, Complainant was excluded from an FBI meeting at the airport.
6. On March 10, 2011, the Federal Security Director ignored and undercut Complainant's authority with regard to the new door closers.
7. On March 14, 2011, Complainant noticed that her department nameplate that identified her inspectors had been removed based on instructions from the Federal Security Director.
8. On or about March 15, 2011, Complainant's team was denied training on the new exit lane monitors and cameras systems.
9. When on or about April 26, 2011, Complainant was interviewed by two investigators from the Office of Investigations about allegations made against the Complainant.
HS-TSA-22709-2012
The following additional claim was subsequently included:
10. Whether Complainant was discriminated against based on sex (female) and in retaliation (previous EEO activity-HS-TSA-00893-2010 and HS-TSA-18097- 2010), while serving as an Assistant Federal Security Director, SV-1801, J-Band, at the Dayton International Airport, in Vandalia, Ohio when on June 1, 2012, she received a 10 day suspension.
At the conclusion of the investigation, the Agency provided Complainant with copies of the reports of investigation and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing and also requested that her complaints be consolidated. The Agency submitted a motion for a decision without a hearing, over Complainant's objections, arguing that the complaint did not warrant a hearing. The AJ granted the Agency's motion and issued a decision without a hearing on March 31, 2014. The Agency argued that Complainant did not produce evidence establishing that the Agency's legitimate non-discriminatory reasons for its actions were a pretext for retaliation, or discrimination, or that the incidents created a hostile work environment.
The AJ found that even if you assume arguendo that Complainant established a prima facie case of discrimination based on reprisal and sex discrimination, the Agency articulated legitimate nondiscriminatory reasons for its actions. With respect to claims one through five where Complainant was not invited to various meetings, the Agency explained that Complainant was not invited to the meetings because the information did not pertain to her unit and the information shared had nothing to do with her unit. Specifically, with regard to claim 1, the Agency indicated that it did not schedule the meeting or determine participants. Regarding claim 2, Complainant was not allowed to handle two unattended vehicles because she was off duty at the time of the incident and that the male supervisor was contacted because it was his jurisdiction. Regarding claim 3, where Complainant maintained that she was not allowed at the March 1 construction meeting about the in-line baggage system, the Agency indicated that the meeting did not concern Complainant's area of responsibility. With regard to claim four, Complainant maintained that she was bypassed for approval of the change of condition request; the Agency maintained that for the sake of efficiency the Director wrote up the approval since he was familiar with the request, knew it met the criteria, and was the ultimate approval authority of the request. With respect to claim 5, were Complainant indicated that she was excluded from March 8 meeting with the FBI, the Agency indicated that a male AFSD was contacted because the matter involved his duties and Complainant was not the AFSD of Law Enforcement.
With regard to claims six and seven, management explained that with respect to claim six, Complainant was sent an email to remind her and all managers to make sure that all doors were secured. The Agency maintained that this email did not specifically pertain to Complainant in any manner nor was it directed at her. Regarding claim seven, where Complainant maintained that the nameplates that identified her subordinates were removed without her approval or consultation, the Agency indicated that this was done for safety reasons. The Agency indicated that Complainant's employees were located along an unguarded hallway so management decided, for safety reasons, that name plates would be removed. Complainant's name plate was not removed because she had an office in a more secured location.
With respect to claim 8, where Complainant complained that on March 15, 2011, her team was denied training on the new exit lane monitors and cameras systems, the Agency explained that although her team was denied training on that specific day, the team did receive this training. The Agency noted the lack of evidence suggesting that the training Complainant's inspectors received was somehow deficient or that the order of the training was material in any way. Finally, regarding claim 9, Complainant complained that on April 26, 2011, she was interviewed by two investigators regarding allegations of misconduct by her. The Agency explained that Complainant was interviewed as a result of an anonymous letter alleging that Complainant had made a discriminatory comment about a subordinate. The Agency asserted that Complainant did not provide any evidence which suggested that the Agency's reasons were pretext for discrimination.
Further, the Agency maintained that Complainant failed to establish a genuine dispute that the alleged nine incidents, individually or collectively, objectively created a hostile workplace as the incidents complained of were work related incidents that were not severe or pervasive enough to establish a hostile work environment.
With respect to claim 10, the ten-day suspension, the Agency indicated that Complainant was suspended because of a statement that she made about a subordinate when she indicated that she promoted the employee because she was a Hispanic woman. The Agency explained that Complainant made the statement to the employee and in front of another employee. After the incident, a manager had a meeting with the subject employee to try to informally resolve the matter. The employee acknowledged that the incident occurred and indicated that she was not offended by the comment. Management believed the matter had been resolved; however, an anonymous note was received which alleged that the Agency was "sweeping the matter under the rug." As a result of the note, management initiated an investigation and a subsequent report recommended that Complainant be suspended for ten-days for her comments. A ten-day suspension was recommended because Complainant had a prior Letter of Reprimand for making disparaging and irresponsible comments about a subordinate and for not being forthcoming about the issue. The Agency maintained that Complainant did not demonstrate that its articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
The AJ found that the evidence did not support Complainant's allegations that she had been subjected to discrimination, reprisal or a hostile work environment. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the nine incidents cumulatively show a pattern of discrimination that is pervasive and extreme. Complainant explains that when she came into the office as the new supervisor, all of her male subordinates resented her. The resentment was acted out in various instances of insubordination and, with one employee, in workplace violence. Complainant contends that management exacerbated the problem.
Further, Complainant asserts that contrary to the Agency's statements, meetings that pertained to safety, like the exit lane meeting was a part of her position description. Complainant contends that her not being at the meetings diminished her authority and standing at the airport. Complainant maintains that it was her responsibility to ensure that Airport Security Regulations, Directives and other Compliance issues were enforced by the Dayton Airport Police, Airlines, Airport Vendors and Aircraft Cargo Operators.
Complainant also maintains that the investigation that stemmed from a report by an anonymous source was the most egregious example of discrimination. Complainant believes that the source was a male subordinate who had issues with having a female supervisor.
Finally, Complainant contends that the AJ improperly found that the comparators she set forth were not similarly situated to her. In doing so, Complainant maintains that the AJ placed an impossible and legally erroneous burden upon her to demonstrate that only AFSD's were treated less harshly than she was treated.
In response, the Agency contends, among other things, that the AJ properly found that there was no genuine dispute of material facts in this matter and that Complainant failed to establish sex discrimination, retaliation or a hostile work environment. The Agency requests that its final order be affirmed.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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). 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case, we find that all the necessary steps were taken to ensure a complete record; the parties were given notice, and had the opportunity to respond. We find that no material facts are at issue in this case and that the AJ correctly issued a decision without a hearing.
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for it actions, namely, that with respect to the nine incidents spanning from February 2011 through April 2011, the record showed that Complainant was not invited to the various meetings because either the Agency did not call the meeting, or the information did not pertain to her unit. The evidence also showed that: several decisions were made based on safety concerns; Complainant's team did receive training; and Complainant was subjected to an investigation because she made a discriminatory statement regarding one of her subordinates.
Further, the evidence showed that Complainant was suspended for 10-days because the investigation proved that Complainant made the discriminatory statement regarding her subordinate being promoted because she was a Hispanic woman. We find that other than Complainant's conclusory statements, she has not demonstrated that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination or that discriminatory animus was involved with respect to these incidents. With respect to Complainant's contentions on appeal, we find that she has presented no persuasive evidence to support a finding of discrimination or reprisal.
Finally, we find, with respect to Complainant's hostile work environment claim, that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which fully implemented the AJ's decision which found that Complainant did not demonstrate that she was subjected to discrimination, reprisal and/or a hostile work environment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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. 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
__10/19/16________________
Date
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.
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