Romaine H.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionJul 26, 20190120181897 (E.E.O.C. Jul. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Romaine H.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120181897 Agency No. HS-TSA-26308-2016 DECISION On May 15, 2018, 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 13, 2018, 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. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to a hostile work environment as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer at the Agency’s William Hobby Airport in Houston, Texas. On November 22, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment on the bases of race (African-American), sex (female, lesbian), color (not 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. 0120181897 2 specified), and in reprisal for prior protected EEO activity arising under Title VII. In support of her claim, Complainant alleged that the following events occurred: 1. In December 2014, a Supervisory Transportation Security Officer (Supervisory TSO1) invited Complainant to a party where Complainant received an unwanted lap dance; 2. In December 2014, another Supervisory TSO (Supervisory TSO2) ordered everyone to leave a Transportation Security Manager (TSM) alone; 3. In May 2015, Complainant was pressured to state that she knew about a relationship between two colleagues; 4. On July 7, 2016, management issued Complainant a Notice of Proposed Removal; 5. On August 15, 2016, management lowered the Notice of Proposed removal to a 14- day suspension, and Complainant began serving the 14-day suspension; 6. On September 1, 2016, a Supervisory TSO1 hugged Complainant and pressed her breasts against Complainant’s back; 7. On September 9, 2016, management directed Complainant to perform Playbook before she had completed her training; 8. On September 15, 2016, a TSM accused Complainant of having an attitude; 9. On September 15, 2016, as on multiple other dates, management lost Complainant’s paperwork; 10. On September 26, 2016, management lied to Complainant about losing her paperwork; 11. On October 10, 2016, Supervisory TSO2 gave Complainant a low mid-year score because he had not observed her for the entire year; 12. On October 18, 2016, management did not send Complainant a daily assignment email; 13. On October 19, 2016, management directly ordered a supervisor to sign Playbook paperwork after training was completed; 14. On November 8, 2016, Complainant’s shift trade request was not processed or approved by Supervisory TSO3; 15. During or about November 19-20, 2016, Supervisory TSO3 did not respond to Complainant’s email about the issues with shift trades; 16. During November 19-20, 2016, management wrote “TSM APPROVAL REQUIRED” next to Complainant’s request for overtime, which was visible to all employees; 17. During November 19-20, 2016, Complainant was skipped on the overtime request list; 18. On an unspecified date, management accused Complainant of lying about a hand injury; 19. On an unspecified date, management yelled at Complainant about her worker’s compensation claim; and 20. On unspecified dates, a Supervisory TSO1 smelled Complainant’s neck and pressed her breasts against Complainant. 0120181897 3 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 requested a final Agency decision. The Agency conducted a supplemental investigation. Following the supplemental investigation regarding claims 1, 6, and 20, the Agency obtained an affidavit from the Supervisory TSO addressing Complainant’s claim of sexual harassment. The Agency provided Complainant with the supplemental investigation and the option of requesting a hearing with an AJ or a final Agency decision. Complainant, again, requested a final Agency decision. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to harassment as alleged. With respect to claims 4, 5, 11, 14, 15, 16, and 17, the Agency held that it provided legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish were pretext for discrimination. The Agency noted that the proposed removal was issued for Complainant’s negligent performance of duties and failure to report a supervisor signing a checklist. Complainant was found to have falsified numerous Playbook Training documents and falsely certified several TSOs as ready to perform Playbook security functions. The Assistant Federal Security Director reduced the removal to a 14-day suspension (claim 5) based on Complainant’s length of service and lack of disciplinary issues. In claim 11, Supervisory TSO2 stated that he became Complainant’s rating official in Fiscal Year (FY) 2016. He reviewed her mid-year rating in which Complainant received ratings of “5” in all areas. He could not find the documentation to justify the same rating. He rated Complainant a 4.5, placing her at the “Achieved Excellence” level, which is the highest possible performance category and providing her with the same bonus and salary increases as a rating of “5.” In response to claims 14 and 15, Supervisory TSO3 averred that Complainant was denied shift trade requests because Complainant failed to follow procedure by first submitting her requests to the Scheduling Operations Officer. Further, she noted that the Collective Bargaining Agreement (CBA) prohibits those who have disciplinary actions of 14 days or more within a year from participating in shift changes. Based on the CBA, Supervisory TSO3 could not approve Complainant’s requests for shift changes. Finally, as to Complainant’s claims 16 and 17, the Coordination Center Officer did not recall skipping Complainant on the overtime list on that specific occasion. However, she averred that for requests for more than 12 hours of overtime in a week required managerial approval. Further, it was noted on Complainant’s overtime request form that she needed approval by the TSM, which Complainant failed to obtain. Accordingly, the Agency concluded that it provided legitimate, nondiscriminatory reasons for its actions. In response, Complainant argued that the alleged actions occurred because of her protected bases. The Agency noted that Complainant failed to provide any support for her assertions, nor did she show that the denials or explanations were false. As such, the Agency concluded that Complainant did not establish that the Agency’s actions constituted disparate treatment. 0120181897 4 The Agency’s final decision then turned to Complainant’s claims of harassment. Complainant alleged she was subjected to sexual harassment by Supervisory TSO1 in claims 1, 6, and 20 which were separate from the other claims alleged by Complainant. The Agency noted that with claim 1, Complainant and Supervisory TSO1 indicated that Complainant was invited to attend a New Year’s Eve party in 2014, at the residence of Supervisory TSO1’s family. Supervisory TSO1 denied performing a lap dance. Complainant asserted that Supervisory TSO1 danced in a “sexually suggestive manner.” With regard to claim 6, Complainant asserted that on September 1, 2016, Supervisory TSO1 hugged Complainant after not seeing her for a while. Supervisory TSO1 noted that she had given Complainant hugs in the past as a greeting. Finally, on an unspecified date, Complainant asserted that Supervisory TSO1 smelled Complainant’s neck and pressed her breasts into Complainant’s back. Supervisory TSO1 denied that the incident was sexual and that it may have just been a greeting. The Agency found that these three events were not sufficient to constitute sexual harassment. As to the remaining events, claims 2 – 5 and 7 – 19, the Agency found that Complainant failed to show that these events taken as a whole created a hostile work environment. Management denied that events alleged by Complainant such as claim 2, 12, and 13 occurred as she alleged. The Agency noted that with claim 3, Complainant was asked about the rumor pursuant to an internal Agency investigation. In claims 9 and 10, Complainant indicated that papers were lost. Complainant’s supervisor at the time, Supervisory TSO4, had been removed during that time. He stated that he placed documents into a folder regarding personnel information. When he was reinstated in November 2016, the documents had been removed. As to claims 18 and 19, management indicated that footage of Complainant’s accident did not show her clearly injuring her hand as she described the incident. As such, the Agency asked Complainant to provide further clarification. As to claim 7, management was under the impression that Complainant could not complete Playbook activities because she had not completed the training. However, upon clarification from the Training Specialist, Complainant could in fact complete Playbook activities with management approval. In claim 8, Complainant accused the TSM of stating she had attitude. The TSM averred that on the day in question, Complainant acted in an exasperated manner, slammed a microphone down, and walked away. He believed that Complainant was having trouble with her composure at that time. Taking the circumstances as a whole, the Agency found that Complainant failed to demonstrate that she was subjected to harassment based on her race, color, sex, and/or in reprisal for her prior protected activity. CONTENTIONS ON APPEAL Complainant appealed without specific argument. The Agency requested that the Commission affirm its final decision. 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. 0120181897 5 § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 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”). ANALYSIS AND FINDINGS Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Unlawful Harassment Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). To establish this claim, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work 0120181897 6 environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 78 (1998). With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Sexual Harassment To establish a claim of sexual harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to her sex, including sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer, in other words, did the agency know or have reason to know of the sexual harassment and fail to take prompt remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Regarding imputing liability in the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. 0120181897 7 What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992). Analysis We turn next to the merits of the complaint. Upon our review of the evidentiary record, which consists of numerous affidavits and exhibits, and having fully considered and analyzed the Agency’s decision which recites and addresses each claim and identifies the evidentiary support on which it relied for its alleged actions, we conclude that the preponderant evidence does not establish discriminatory animus.2 In reaching this conclusion, we first find that most of Complainant’s claims are, in essence, in support of her claim that she was treated disparately, and this disparate treatment created a hostile work environment. Her allegations reflect dissatisfaction with disciplinary actions, comments made in the workplace about her alleged attitude, her performance appraisal, her requests for shift changes, and overtime. She did not appreciate management’s inquiries into her work injury for which she filed a claim with the Office of Workers’ Compensation Programs or into her knowledge about a relationship between colleagues which was part of an internal investigation. Complainant has failed to show that the claims raised were causally connected to unlawful discrimination on any basis or motivated by discriminatory animus. It is disputed that some of the allegations even occurred. In addition, for tangible employment actions, the Agency articulated legitimate, nondiscriminatory reasons for its actions. In sum, the evidence does not support a finding of discrimination on any basis, the presence of discriminatory animus, or the existence of a hostile work environment.3 Complainant has not shown that the allegedly hostile claims that she raised even occurred or, if they had, that the alleged discriminating officials were aware of the allegations. Further, several of Complainant’s claims, as stated earlier, relate to allegations of being treated differently. These claims were actually offered as evidence of disparate treatment. Even if the claims occurred as alleged, Complainant failed to show that the Agency officials were in any way motivated by discriminatory animus. 2 The record in this case is exhaustive and details numerous incidents in support of the claim. Although the claims will not be individually addressed, all matters which Complainant raised have been considered and viewed in the context of all bases and in the context of disparate treatment and a hostile work environment. 3 The Commission notes that 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. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 0120181897 8 In addition, many of the actions taken by the alleged discriminating officials were routine managerial actions, inquiries about her performance or non-performance, assignments or duties, and decisions, all of which, absent discriminatory animus, will not be second-guessed by the Commission. Agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding adverse actions, the Agency articulated legitimate nondiscriminatory reasons for its actions for which Complainant has failed to show were pretext for discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainant has failed in this regard. What is apparent from a review of the record in its entirety is not discriminatory animus. As stated before, agencies generally have broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. Further, the discrimination statutes are not a civility code. What is prohibited is “behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. at 81. We are mindful that the discrimination statutes do not create a right to work in a pleasant environment, merely one that is free from discrimination. As a result, employees may experience unprofessional, inappropriate, and disrespectful treatment. However, where, as here, such treatment is not based on a prohibited reason, the discrimination statutes do not prohibit such actions which inevitably occur in the workplace. In addition, in claims 1, 6, and 20, Complainant asserted that she was sexually harassed by Supervisory TSO1. She indicated that on New Year’s Eve 2014, Supervisory TSO1 invited her to a family party held at her sister’s home. Complainant claimed that Supervisory TSO1 engaged in “a lap dance” in front of her. Supervisory TSO1 denied that the event occurred and that, if anything, she was dancing with family members in a family room and Complainant was seated. Complainant asserted that over nearly a two-year period, Supervisory TSO1 hugged her once in September 2016 and on an unspecified date smelled Complainant’s neck and pressed her breasts against Complainant’s back. Supervisory TSO1 averred that she greets people with hugs but denied that the alleged incidents, if they occurred, were sexual in nature. Upon review, we find that the three events alleged herein over a two-year time period is not sufficient to rise to the level of creating a hostile work environment. 0120181897 9 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 finding that Complainant did not establish that she was discriminated against as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120181897 10 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 July 26, 2019 Date Copy with citationCopy as parenthetical citation