0120064586
03-19-2008
Sandra F. Bauldwin, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Sandra F. Bauldwin,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 01200645861
Hearing No. 100-2005-00221X
Agency No. TSAF-3-1409
DECISION
On August 6, 2006, complainant filed an appeal from the agency's July
5, 2006, 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 appeal is deemed timely and is accepted for the Commission's
de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reflects that in August 2002, complainant was hired by the
agency to work as a Transportation Security Screener in Columbus, Ohio.
In September 2002, complainant was transferred to work at the agency's
Ronald Reagan Washington National Airport facility in Arlington, VA.
On or around September 13, 2002, complainant, a certified screener, was
asked to assist management in providing on-the-job training to other
screeners, lead screeners, and supervisory screeners. Complainant
alleges that management informed her on that date that she would have
all the rights and responsibilities of a supervisor. In November 2002,
complainant was no longer needed as a trainer, and she was placed in a
screener position at the airport. In August 2003, complainant applied
for and was promoted to the position of Supervisory Screener.
On September 24, 2003, complainant filed an EEO complaint alleging
that she was subjected to a hostile work environment and discriminated
against on the basis of race (African-American) and in reprisal for
prior protected EEO activity2 when she was removed from her position
as a Supervisory Security Screener, assigned Security Screener duties,
and subjected to rumors being spread about her demotion.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. When the complainant did not object, the AJ assigned
to the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on May 25, 2006. The AJ's
decision held that complainant's claim should be dismissed for untimely
EEO Counselor contact. The AJ held that, even if complainant's claim was
timely, she failed to establish that the alleged conduct was sufficiently
severe or pervasive to have altered the conditions of her employment.
The AJ further held that complainant failed to establish that any of the
alleged discriminatory conduct was based on her race and/or retaliation.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that her complaint should not be dismissed
for untimely counselor contact because it was initially accepted by
the agency. Complainant states that she did not object to the agency's
motion for a decision without a hearing because she never received the
motion prior to issuance of the AJ's decision. Complainant argues that
the AJ erred in issuing a decision without a hearing because there
are genuine issues of material fact to be resolved in this case and
because the evidence demonstrates that she was subjected to a hostile
work environment. In response, the agency requests that we affirm its
final decision and repeats arguments made below.
ANALYSIS AND FINDINGS
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. Department of Defense, 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).
Assuming arguendo that complainant initiated EEO Counselor contact in a
timely manner, we find that complainant failed to establish that she was
subjected to unlawful discrimination. To prevail on a disparate treatment
claim, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case
by demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (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).
After a careful review of the record, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Agency officials
indicated that complainant was asked to help train newly hired
security screeners because there was a shortage of certified trainers.
Agency officials noted that it is customary for certified screeners to
help train new security screeners. Agency officials indicated that
complainant was never placed in a supervisory position, and she was
given security screener duties once the agency no longer had a need for
her assistance in training new screeners.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext
for discrimination. Complainant can do this directly by showing that
the agency's proferred explanation is unworthy of credence. Burdine,
450 U.S. at 256. Complainant argues that she was given a permanent
supervisory position when she transferred in September 2002, that
management officials demoted her, and that management officials gave the
supervisory position she was promised to another screener. However,
the agency submitted documentation indicating that, in August 2002,
complainant was hired as a security screener. Moreover, complainant
did not receive supervisory or increased pay while she was training the
newly hired screeners. The agency also provided documentation that the
alleged comparator who was given the supervisory position was offered a
conditional appointment as a supervisor security screener in August 2002,
several weeks before complainant was asked to assist in training new
screeners in September 2002. Based on a review of the record evidence,
we find that complainant failed to provide any evidence of pretext in
the record. Furthermore, we find that the record is devoid of any
evidence that the agency's actions were motivated by discriminatory
animus towards complainant's race or a retaliatory motive.
We also find that complainant failed to prove she was subjected to
discriminatory harassment. Harassment is actionable only if the incidents
to which complainant has been subjected were "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and
create an abusive working environment." Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75 (1998); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). To establish a prima facie
case of harassment, complainant must show that: (1) she is a member of
a statutorily protected class and/or was engaged in prior EEO activity;
(2) she was subjected to unwelcome verbal or physical conduct related
to her membership in that class and/or her prior EEO activity; (3) the
harassment complained of was based on her membership in that class and/or
her prior EEO activity; (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. See Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000) (citing
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the
harasser's conduct is to 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).
Upon review, we concur with the AJ's determination that complainant
failed to establish a prima facie case of harassment. In particular,
we find that complainant failed to provide any evidence that the alleged
harassment occurred because of her race or in retaliation for any prior
protected activity. Furthermore, in viewing the events as a whole,
complainant has not established that the incidents in question had the
purpose or effect of creating a hostile work environment.
CONCLUSION
The Commission finds that summary judgment was appropriate in this case
because no genuine issue of material fact is in dispute. We find that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus towards her. We discern no basis
to disturb the AJ's decision, and we therefore affirm the agency's final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________ March 19, 2008
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 Complainant argues that she was subjected to verbal harassment in
retaliation for complaining to management about the events discussed in
the instant complaint.
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0120064586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064586