U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melinda H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022002577 Hearing No. 520-2019-00268X Agency No. HS-TSA-01274-2018 DECISION On April 9, 2022, 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 April 6, 2022, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Transportation Security Officer (TSO) at the Agency’s Elmira Regional Airport in Horsehead, New York. Deputy Assistant Federal Security Director for Screening (DAFSD) was her third-level supervisor. Report of Investigation (ROI) at 370. Complainant and DAFSD were stationed at different airports; DAFSD’s work site was the Rochester Airport, but he had oversight of the Elmira airport, 100 miles away. ROI at 130, 370, 404. 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. 2022002577 2 On May 19, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), disability (wrist injury), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 24. In March 2018, a Human Resources representative told Complainant that non- disciplinary removal paperwork had been issued; 25. On May 15, 2018, management issued Complainant a letter which stated that if she was unable to return to full duty within 15 days, she may be removed from employment; 26. On June 11, 2018, management issued Complainant a Notice of Proposed Removal; 27. On July 24, 2018, management terminated Complainant’s employment; 28. On September 4, 2018, management issued Complainant a letter requesting return of Agency uniforms and equipment and threatening civil and criminal charges; and 29. From August 3, 2017, through the present, management failed to reasonably accommodate Complainant’s post-injury work restrictions.2 In addition to the claims specifically enumerated above, Complainant alleged that she was subjected to harassment. Complainant identified a number of actions in support of her claim of harassment including, but not limited to, DAFSD on one occasion talked about sex with Complainant and asked Complainant if she had gone out while visiting Rochester; DAFSD denied use of leave for Complainant; and DAFSD appointed himself the mediator of Complainant’s union grievance procedure, when he was the subject of the grievance. 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 timely requested a hearing. The AJ assigned to the case granted the Agency’s August 10, 2020, Motion for a Decision Without a Hearing and, over Complainant's objections, issued a decision without a hearing on March 11, 2022. Concerning claims 24-29, the AJ found that Complainant failed to establish that she is a qualified individual with a disability covered under the Rehabilitation Act. For purposes of analysis, the AJ presumed that Complainant was an individual with a disability. 2 The enumerated claims were those determined by the Administrative Judge to be independently actionable occurrences on the bases of disparate treatment (24 through 28) and denial of reasonable accommodation (29), in addition to being claimed as a pattern of harassment. Claims 1 through 23 were considered as incidents in a pattern of harassment. 2022002577 3 However, the AJ determined that the record established beyond plausible dispute that the essential functions of Complainant’s TSO position included performing security inspections of people and property and Complainant conceded that she should not perform these essential functions with or without reasonable accommodation. Specifically, the AJ noted that Complainant stated, “My medical restrictions make it impossible for me to work at ELM as a TSO.” ROI at 132. Further, the AJ found that there was no vacant funded position to which Complainant could have been reassigned. The AJ pointed to Complainant’s own evidence that, due to the size of her facility, the Agency did not have administrative offices or limited or light duty positions to which she could have been reassigned. ROI at 131, 281, and 330. Complainant admitted that she “couldn’t do any other positions with TSA and our airport did not have exit lane duty.” ROI at 330. Based on the undisputed evidence, the AJ concluded that Complainant could not show that the Agency’s actions alleged in claims 24-29 constituted a violation of the Rehabilitation Act. Concerning claims 24-28, the AJ determined that the Agency provided legitimate nondiscriminatory reasons for its actions namely that Complainant had been unavailable to perform the duties of her position as a TSO since on or about August 4, 2017 and had been on leave without pay status since September 18, 2017, the Agency took action to remove her from her position. The AJ found that Complainant failed to establish that the Agency’s reasons were pretext for discrimination. Therefore, the AJ concluded that Complainant failed to establish that the Agency’s actions in claims 24-29 constituted unlawful discrimination. Turning to Complainant’s claim of harassment, the AJ found that the events provided in support of her claim taken together and accepting them as true were not sufficient to create a hostile work environment. Furthermore, the AJ found that Complainant failed to show that the events alleged were because of her sex, disability, or in reprisal for her prior EEO activity. Therefore, the AJ concluded that Complainant failed to show that she was subjected to harassment based on her sex, disability or in reprisal as alleged. 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. The instant appeal followed. ANALYSIS AND FINDINGS 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). 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. 2022002577 4 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Therefore, we AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 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). 2022002577 5 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, a 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. 2022002577 6 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 March 9, 2023 Date
