U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tynisha H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022003103 Hearing No. 440-2020-00027X Agency No. HS-TSA-00090-2019 DECISION 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 22, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer at the O’Hare International Airport in Chicago, Illinois. 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. 2022003103 2 On January 31, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and non-sexual harassment on the bases of sex (female), disability (physical), genetic information, and age (43), and in reprisal for prior protected EEO activity, when: 1. on an unspecified date in 2018, management required Complainant to work during her lunch breaks; 2. on April 29, 2018, management failed to reprimand a male coworker for making disparaging comments to Complainant; 3. in June 2018, management failed to address Complainant’s concerns regarding management’s unfair distribution of work duties; 4. on an unspecified date in June 2018, management scheduled Complainant for two consecutive days on “rotation, floating, and backup” duty; 5. in August 2018, management denied Complainant’s request to increase female Transportation Security Officers at the checkpoint to decrease Complainant’s workload; 6. in August 2018, management denied Complainant’s request to self-demote, even though management granted other officers’ requests to self-demote; 7. in September 2018, management denied Complainant’s request to decrease her workload; 8. on October 5, 2018, management failed to prevent an officer from revealing confidential information during a mediation; 9. on October 12, 2018, management denied Complainant’s shift trade; 10. on October 24, 2018, a manager texted Complainant while she was on medical leave; 11. on October 26, 2018, management failed to reprimand a male coworker for making disparaging comments to Complainant;2 12. on March 25, 2019, a manager questioned Complainant in an “antagonizing” manner; and 13. on April 1, 2019, management failed to reprimand an officer for calling Complainant “old” during a staff briefing. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision on March 14, 2022. The AJ noted that the substance of Complainant’s Pre-Hearing Report included arguments for a motion for summary judgment. 2 Complainant averred that this incident was related to incident 8. ROI at 144, 235-6. 2022003103 3 However, the AJ denied Complainant’s motion and found that Complainant’s unauthenticated documents and unsworn witness statements had little to no value, and they should not be considered. The AJ also presumed that Complainant was no longer pursuing a genetic information claim because there was no longer a reference to it. The AJ found that the record did not support a discriminatory motive, or that the Agency’s actions were sufficiently severe or pervasive to alter the conditions of Complainant’s work environment. The AJ further determined that the Agency provided legitimate, nondiscriminatory reasons for its actions; and Complainant could not show that the reasons were pretextual. The AJ concluded that summary judgment was appropriate in the Agency’s favor. 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, and Complainant submitted a statement in support of her appeal. The Agency opposed Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review 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. 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. (as revised, August 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). Complainant Representative As an initial matter, Complainant raises issues with her former representative. For example, Complainant asserts that her former representative failed to call into a status conference scheduled by the AJ. Complainant’s former representative was an Executive Vice President of the local union, and we find that Complainant’s complaints against her former representative are a collateral attack. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the workers’ compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep’t of Defense, EEOC Request No. 05931059 (July 15, 1994). 2022003103 4 The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her concerns with the quality of her union representation is with the local union. Administrative Judge Complainant also complains about the AJ’s decisions. For example, the AJ provided a “lack of options” when denying Complainant’s request for a 90-day abeyance because she had a representative who could continue processing the complaint. During a status conference, the AJ presented Complainant with two options: withdrawing her complaint or appealing the AJ’s decision. Complainant contends that she was not offered an opportunity to present documents to the AJ. In addition, the AJ determined that Complainant provided unauthenticated documents and unsworn witness statements. Complainant asserts that she attempted discovery and had to gather documents during a pandemic, and she relied upon her former representative and Agency counsel to facilitate access to the Agency’s facility and personnel during discovery. However, the Agency denied almost all of her requests for documentation, and when she emailed the AJ for assistance, the AJ responded that Complainant needed to work it out with counsel.3 With her appeal, Complainant provided additional documents, including a page of the Agency’s response to her request for documents. Complainant Appeal Exhibit J. As noted by the Agency in its response to Complainant’s appeal, she never filed a Motion to Compel with the AJ to raise concerns about discovery. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). In this case, Complainant only disagrees with the AJ’s decisions, but there is no evidence of an abuse of discretion by the AJ. Complainant also contends that the AJ only addressed a few of her claims and that her claims were not fully addressed. 3 Complainant’s evidence shows that the AJ asked that Complainant omit her from communications unless Complainant was using it as an exhibit to a motion relating to an unresolved discovery dispute. Complainant Appeal Exhibit G. 2022003103 5 While the AJ did not analyze each claim, the AJ specifically adopted the material facts and arguments in the Agency’s Motion for Summary Judgment, which outlined each claim. We find that the AJ addressed all the claims when concluding that, overall, Complainant did not show that the Agency’s actions were sufficiently severe or pervasive to alter the conditions of her work environment or that the Agency’s reasons for the actions were pretextual. Decision without a Hearing 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 she 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. Complainant asserts that the AJ’s decision was in error because her claims can only be resolved by weighing conflicting evidence. For example, Complainant contends that statements from one coworker provide insight into the treatment that Complainant experienced, and another coworker discusses workload and actions of supervisors. Complainant also avers that other witnesses would clarify conflicting statements regarding workload at the checkpoint. However, Complainant only provides generalizations, and she did not identify any witness statement nor cite to evidence to show a genuine dispute. Notably, Complainant did not offer that any witness had evidence to connect the Agency’s actions to a protected basis. Regardless, mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Accordingly, we find that a decision without a hearing was appropriate. Disparate Treatment (Claims 7 and 9) We note that Complainant’s initial contact date with the EEO office was October 16, 2018. ROI at 38. EEOC regulation requires that complaints of discrimination should be brought to the attention of the EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). Here, discrete claims that occurred prior to September 1, 2018, are untimely and will be considered as part of the harassment claim. As such, only claims 7 and 9 are timely claims of disparate treatment. 2022003103 6 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her age, disability, genetic information, and sex, and in reprisal for prior protected EEO activity for claims 7 and 9, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. For claim 7, Complainant averred that she requested a reduced workload when she requested a self-demotion. ROI at 130. A Transportation Security Manager (“Manager”) responded that he was aware that Complainant requested a demotion, which was addressed by the Assistant Federal Security Director (“Director”). The Director averred that Complainant requested a demotion due to the work distribution and personality issues with her peers. They agreed to first try to address Complainant’s concerns. In October 2018, the Director followed up with Complainant, who stated that she did not want a demotion and was happy with the way her concerns were addressed. ROI at 571-2, 517. For claim 9, the Manager explained that Complainant informed him that she filed an EEO complainant against a Coworker and learned that they would be assigned to the same checkpoint for the Spring Shift. The Manager responded that, with an open EEO complaint, the “accused” was typically moved, but Complainant stated that she thought it would be easier if she moved. Complainant was subsequently moved to another checkpoint. ROI at 572-3. Complainant did not provide evidence to prove that the proffered reasons were pretexts for discrimination. Rather, the record evidence supports the Agency’s reasons. On August 25, 2018, the Director emailed her supervisor to inform him that she met with Complainant, and they agreed to delay the demotion until they tried to resolve her concerns. ROI at 274. For claim 9, Complainant submitted a text message exchange with the Manager in which she stated, “why they just don’t move me, it would be a lot easier don’t you think.” Complainant was then informed that she would report to a different checkpoint until further notice. ROI at 162, 165. Complainant’s bare assertions that management officials discriminated against her are insufficient to prove pretext or that their actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, disability, genetic information, or sex, or in reprisal for prior protected EEO activity for claims 7 or 9. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases for claims 7 or 9. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that claims 7 or 9 were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment for claims 7 or 9. 2022003103 7 Regarding the other incidents for the harassment claim, we find that Complainant did not establish that incidents 8, 10, or 11 were based on any of her protected bases. In her affidavit, Complainant responded “unknown” or “no,” when asked how the incidents were related to her age, disability, genetic information, or sex. While Complainant averred that the incidents were related to her EEO activity, she did not establish a connection to her EEO activity. ROI at 136, 142, 145-6. For incidents 8 and 11, the Coworker allegedly disclosed “confidential information”4 on October 5, 2018, following a mediation session with Complainant. She testified that this incident was related to her EEO activity because she complained to the Director about the Coworker, and it was related to her “initial claim” about schedules and interruptions of her breaks. ROI at 136, 146. However, she offered no evidence that the Coworker or the three named management officials, who allegedly failed to prevent the Coworker from revealing “confidential information,” were aware of her prior EEO activity. Further, Complainant did not initiate the instant EEO complaint until October 16, 2018, which was after the Coworker’s disclosure. ROI at 38. Regarding event 10, a supervisor texted Complainant while she was on leave to check in and ask if everything was going well; stated that she was “missing my best lead”; and informed Complainant that she had been at other checkpoints. ROI at 415-6. We find that there is nothing about these text messages that would lead a reasonable person to believe that it was due to Complainant’s protected EEO activity. Many of the complained of events were work-related (incidents 1, 3, 4, 5, 6, and 12). The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). While we note that these incidents resulted from a shortage of staff, especially of female employees, there is no evidence that these work-related incidents were abusive or offensive. For the remaining events (incidents 2 and 13), even crediting Complainant’s version of events, and assuming that they were based on a protected basis, we find that they were not sufficiently severe or pervasive to rise to the level of a hostile work environment. 4 Complainant stated that she received a text message stating that the Coworker informed his supervisor that Complainant and the Coworker were the only ones who worked at the checkpoint and two coworkers “don’t work.” The Coworker also allegedly said that Complainant’s only problem with him is that he asks her questions while she is on break. ROI at 234. 2022003103 8 In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Kozak v. U.S. Postal Serv., EEOC Appeal No. 01A63021 (Aug. 23, 2006); Battle v. U.S. Postal Serv., EEOC Appeal No. 0120083387 (Feb. 4, 2010). Such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and … that the victim in fact did perceive to be so.” Id. In this case, Complainant was offended when a coworker stated that she was too uptight and needed to “get some” in April 2018 (incident 2); and another coworker stated “to the new [Lead Transportation Security Officers], don’t let the Old Lead push you around” in April 2019 (incident 13). ROI at 105, 150. We find that two incidents, approximately one year apart, did not alter the conditions of Complainant’s work environment. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment based on her age, disability, genetic information, or sex, or in reprisal for prior protected EEO activity. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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. Accordingly, we AFFIRM the Agency’s final order adopting 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. 2022003103 9 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, 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. 2022003103 10 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 February 7, 2023 Date
