0120112451
02-11-2013
Sadilya R. Jeter, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Sadilya R. Jeter,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120112451
Agency No. HS-09-TSA-006465
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 18, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Transportation Security Officer (TSO) for the Agency's Transportation Security Administration (TSA), and was assigned at the Hartsfield International Airport in Atlanta, Georgia.
On July 31, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to discrimination and a hostile work environment on the bases of disability (anxiety and depression) and in reprisal for prior protected activity when:
1. on or about August 14, 2007, a Supervisory Transportation Officer (STSO1) accused her of disturbing the x-ray operator; of not working; of being one of the worst screeners; and of using improper screening techniques;
2. on or about October 12, 2008, STSO1 stated, "you can't yell at [Complainant], otherwise she gets all upset;"
3. in October 2008, STSO1 stated to a Lead Transportation Security Officer (LSTO), "put [Complainant] on the exits, she's never here anyway;"
4. on November 30, 2008, STSO1 asked a named STO (STSO3), "did you put any paper work on [Complainant]?" and stated, "I don't like her;"
5. on December 9, 2008, STSO1 stated to a named TSO (TSO2), "I hope [Complainant's] father doesn't have the same work ethic as [Complainant]." On the same date, STSO1 also stated to TSO2, "talking to [Complainant] is not going to help you with your pass;"
6. on January 25, 2009, a Transportation Security Manager (TSM1) asked her for a doctor's note for her absence;
7. on January 27, 2009, a named TSM (TSM2) failed to fax Complainant's Family Medical Leave Act (FMLA) documentation to the Office of Human Capital;
8. on February 8, 2009, TSM1 informed her that failure to provide the requested medical documentation to justify her absences could result in disciplinary action;
9. on February 18, 2009, the FMLA Coordinator, Office of Worker's Compensation Program (OWCP) and TSM1 informed her that her physician did not provide enough information on her FMLA and other medical documentation;
10. on February 18, 2009, the Deputy Assistant Federal Security Director (Director) and a named TSM (TSM3) made her feel compelled to identify the specifics of her illness for fear of termination; the Director denied her request to work four hour days; and the Director stated that Complainant called out frequently after TSA moved her to a T-South Screening checkpoint;
11. on or about June 9, 2009, the Assistant Federal Security Director (AFSD) for Screening sent her home while the TSA physician examined her medical documentation; and
12. on August 25, 2009, she was terminated her from her TSO position.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on June 15, 2011, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. Without addressing the prima facie analysis, the Agency found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.1
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on disability and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 complainant to prevail, he must first establish a prima facie 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 the personnel action at issue, 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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions.
STSO1 denied subjecting Complainant to harassment. Regarding the alleged incidents on August 14, 2007, STO1 stated he recalled that on that date Complainant "was on a [screening] lane and was talking next to an x-ray operator who was actively running an x-ray. TSA policy is that x-ray operators are not to be distracted and having a conversation next to one is a violation of security. When we are on a screening lane, we screen. If you are doing paperwork, you need to go somewhere besides an operational screening lane...I don't remember whether [Complainant] was supposed to be at work or not, but she was on an active, working lane and was talking and doing paperwork around officers who were trying to do their job. She was distracting them from their security functions." STSO1 stated that he pulled Complainant off the floor and told her, "we don't talk on the floor and we don't do paperwork on the floor.
As far as invading her personal space, STSO1 stated that did not occur and asserted, "I treat my officers with respect, even the disrespectful ones such as [Complainant]. [Complainant] was disrespectful, loud, combative, confrontational...I told her to stay focused on the bag search and no talk...this was not harassment. This was an officer who was not doing her job who was a security violation who was told to focus on her job."
STSO1 acknowledged he sometimes used a poor choice of words about Complainant. For instance, STSO1 stated that he and another STSO had a discussion one time about strategies for their new team and "each year when we get a brand new team, we talk with the STSOs about the officers and our approaches and attendance and training issues...I said to them, 'you can't yell at [Complainant]; otherwise she gets all upset.' I said anytime you make a correction on [Complainant's] performance, she becomes emotional. It was a poor choice of words...I told [STSO] that because I believed we needed to take a different approach with [Complainant]."
With respect to Complainant's allegation that in October 2008, STSO1 made a comment LSTO that to put Complainant on the exits because "she's never here anyway," STSO1 denied it. Specifically, STSO1 stated that the subject incident actually occurred on November 9, 2008, and that when Complainant showed up late, he told LSTO to put her on the exits. STSO1 further stated "I don't think I said, 'she's never here anyway.' I said, 'put her on the exits; she is late.'"
Regarding Complainant's allegation that STSO1 told TSO2 talking to Complainant was not going to help him with his pass, STSO1 stated, "when the statement was made, [TSO2] knew he was supposed to be in a lane and he was not in the lane doing what he was supposed to be doing...the assumption would be he was talking to [Complainant]. They were probably just talking at the back of the lane."
With respect to Complainant's allegation that STSO1 made a comment that he hoped Complainant's father did not have the same work ethic as his daughter, STSO1 acknowledged making the comment. STSO1 stated, however, Complainant was not at work when he made the comment to an Immigration and Customs investigator who was doing a background investigation on an officer. STSO1 stated that the investigator mentioned he worked with Complainant's father years ago, and "we started talking about [Complainant] and I said she had not been to work in months and I made the comment, 'I hope her dad had a better work ethic than her.'" STSO1 acknowledged, "it was a poor comment, but [Complainant] had not been into work. I was not harassing her."
TSM1 stated that in regard to Complainant's allegation that he failed to fax her FMLA documentation to the Office of Human Capital, it was not true. Specifically, TSM1 stated "I was not supposed to fax any packet to the Office of Human Capital contact. This is done by FMLA/OWCP team here in at Atlanta." TSM1 further stated that he and TSM2 reviewed Complainant's medical documentation and "if any days were not covered by her [Complainant], she was asked to bring them in. No demands were made."
TSM2 stated that she asked Complainant to submit additional medical documentation after he FMLA had expired. TSM2 stated that at that time she was trying to obtain documentation for the time Complainant was "out the block of time in December 2008 or January 2009 to cover her time period she was out. We needed updated medical documentation but I was not handling FMLA."
TSM2 stated that she and TSM1 dealt with STSO1 with respect to the comment he made about Complainant's father. TSM2 further stated that STSO1 received verbal counseling after acknowledging making the comment. TSM2 stated that she and TSM1 "did not investigate any other comments [Complainant] made. Th[at] was the only one I recall that was in her claim. She named a bunch of people and said they were looking at her or singling her out, but I did not find a basis for it. She was not at work, so I don't see how people were harassing her. The only thing I could confirm was the comment [STSO1] made."
The Director stated that on February 18, 2009, he conducted a meeting with Complainant concerning her attendance. Specifically, the Director stated at that time Complainant "had basically been calling and saying that she has applied for FMLA and she had applied for light duty and no one would get back with her. I had several people in the meeting, including: [FMLA OWCP Coordinator], [light and limited duty process manager] and [Complainant's direct manager] because he was relating she was missing a lot of days and her attendance was unsatisfactory." The Director stated that during the meeting, he asked Complainant if she was uncomfortable with the Agency officials in the room and she "said 'no.' I explained we were there to address her concerns and answer questions about applying for FMLA and light duty and to address her attendance issues."
The Director stated that when the issue of her attendance came up, Complainant told everyone "I have depression and I'm afraid to go out of the house and my supervisor harassed me and caused my depression." The Director stated that he told Complainant that if she was having these type of difficulties, he was concerned that she may not be fit for duty and "I need to get HR involved and do a fit for duty on you.' She changed her attitude and said, 'oh no, I'll be OK. I can do the job.' The meeting ended with her telling me she was able to do her job. The next thing I knew three or four weeks later, she contacted [AFSD] and said I harassed her in this meeting. I did nothing of that kind."
The Director stated that according to Complainant's manager, she and other managers questioned Complainant's mental stability because "she had episodes of crying and emotional, unprofessional outbursts on the checkpoint in front of passengers. They said this a few months after our February 2009 meeting. When [Complainant] was found on the bathroom floor at the Hartsfield Jackson Atlanta Airport in uniform and crying hysterically I reported this through the chain of command." The Director stated that Complainant was sent home in June 2009, because she started having panic attacks on the checkpoint...I initiated a fitness for duty examination by sending her a letter requesting medical documentation." The Director stated that after he sent the letter to Complainant, AFSD took over the situation.
The Director stated that he was not the deciding official to terminate Complainant from Agency employment. Specifically, the Director stated that he did not read AFSD's proposal for removal and "I did not know that a TSA doctor recommended her unfit for duty. I was not involved in making the decision to terminate the Complainant based on fitness for duty evaluation."
AFSD stated that she learned that on May 26, 2009, Complainant was found lying on the bathroom floor near the checkpoint where she was assigned to work and that she was crying. AFSD stated that on May 28, 2009, she sent Complainant a letter saying that because of the episode in the bathroom, she was placing her in a non-work status for seven days until she had a physician answer a specific set of fitness-for-duty questions that she provided her.
AFSD stated that around June 2009, Complainant gave her physician's responses and in the documentation, the physician raised several questions about whether Complainant was fit for duty. Specifically, AFSD stated that the medical documentation indicated that Complainant "could not perform her duties on the checkpoint. The medical questionnaire had questions we provided her to give to her doctor and the answers stated that she was not capable of screening. For example, if the question asked whether she could interact with the public the answer was, 'sometimes.' There were several questions along that line and the answer was insufficient in terms of clearing her to work the checkpoint."
AFSD stated that on June 9, 2009, she met with Complainant and asked her if it would be possible that a TSA physician could talk to her physician and "I presented her with a request for medical release that she could sign so that one of our doctors could communicate with her doctor. I explained that the medical release was for a TSA medical review officer to assist management with determining whether or not she would be fit for duty and could perform the full range of her job. She did not respond on that day. I gave her seven days to get back to me. She refused to sign the medical release, so our TSA doctor was unable to communicate with her doctor directly."
Further, AFSD stated that Complainant's depression and anxiety "made her a security risk on the checkpoint." AFSD stated that Complainant was terminated from Agency employment based "in part on depression and anxiety because her physician said she could not do the job in the documentation we received. She would not relinquish her rights to her medical condition, so our TSA physician could not talk to her physician." AFSD stated that according to the TSA physician, he determined that based on the medical documentation provided by Complainant's physician as well as his own review, Complainant "was unable to medically perform the essential functions of a TSA-TSO as required. [Complainant] was on leave without pay at that time. I sent her a Notice of Proposed Removal on July 24, 2009."
AFSD also stated, "I deny that I harassed [Complainant] by sending her home on leave without pay. She was out of leave at that time." AFSD further stated that when she learned of Complainant's allegations that STSO1 harassed her, "I sent it to one of our program analyst to conduct an investigation. The analyst is based at an off-site duty location." AFSD stated that following the investigation, the program analyst found Complainant's harassment claim to be unsubstantiated. AFSD stated that she nevertheless had Complainant moved from the International section to the T-North checkpoint.
Moreover, AFSD stated that when Complainant informed her that the TSM1 had asked her for medical documentation which she believed constituted harassment, she explained to Complainant that TSM1 "had a need for information to determine whether her absence from work would be covered. When I said that, the Complainant gave indications that she understood my explanation."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of 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. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her disability or prior protected activity.
Complainant, on appeal, argues that the Agency "did not give my situation the proper respect and understanding that it truly deserved." Complainant also argues that she never suffered from depression, anxiety and panic attacks until STSO1 "began to harass me between the years of 2007-2008. [STSO1] is a supervisor who is well-known for his abrasive and abusive personality."
We note Complainant's extensive arguments on appeal, which include, but are not limited to purported deficiencies in the investigation, the Agency's purported determination relying upon evidence not of record; the Agency's purported failure to review the evidence in the light most favorable to Complainant; and the efforts of STSO1 to take every measure possible to have Complainant terminated from Agency employment. We have reviewed Complainant's appellate arguments, but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
February 11, 2013
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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