0320150034
01-14-2016
Alline B.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alline B.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Petition No. 0320150034
MSPB No. PH-0752-13-0060-I-2
DECISION
On February 19, 2015, Petitioner filed a timely petition with the Equal Employment Opportunity Commission seeking review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of 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 reasons stated below, the Commission CONCURS with the MSPB's final decision.
BACKGROUND
Petitioner worked as a Transportation Security Manager at the Agency's Transportation Security Administration (TSA) Portland International Jet Port in Portland, Maine. Petitioner alleged that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was removed from the Agency for failure to exercise due diligence in the performance of duties and for lack of candor. The record reveals that the Agency has a policy that prohibits cell phone use in screening areas and while performing screening functions. While Petitioner was on duty, one of the TSA screeners (subordinate) took a picture on her cell phone of a coworker holding a sign that they had found in a passenger's luggage. The subordinate showed Petitioner the picture. Approximately, two hours later the subordinate posted the picture to Facebook. Petitioner was told by her Director to address this situation. Thereafter, Petitioner wrote a report but did not include in the report the fact that she had seen the picture prior to the subordinate posting it to Facebook. Upon review of the incident on video upper management proposed Petitioner's removal on two charges, (1) for failure to exercise due diligence in the performance of duties, and (2) lack of candor. Petitioner maintained that she was removed because of her prior EEO activity, as she had been subjected to a hostile environment, and she maintained that a male employee had committed a similar offense and was not removed. Petitioner appealed her removal to the MSPB.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the record supported the Agency's removal action. The AJ also found that Petitioner did not show that she was subjected to discrimination. Thereafter, Petitioner sought review by the full Board. The Board found that Petitioner did not establish any basis for granting the petition for review. Therefore, the Board denied the petition for review and affirmed the initial decision, which was now the Board's final decision. The Board found that the AJ properly sustained the charge of failure to exercise due diligence. As the record supported the Agency's argument that Petitioner failed to take action against her subordinate after she was made aware that the subordinate violated Agency policy by taking a picture on her personal cell phone of a sign found in a passenger's luggage that read, "that's what she said" and posted the photo to Facebook. The Board also found that the Agency's charge of lack of candor was supported because Petitioner did not disclose that she had knowledge of the subordinate's actions.
The Board also found that Petitioner did not show that she was subjected to reprisal as even though Petitioner had prior EEO activity that occurred within a time frame where a nexus could be shown, Petitioner's actions caused management not to trust her. With respect to Petitioner's hostile work environment claim, the record showed that Petitioner's supervisor treated all of his employees in a harsh manner and that his behavior was not specifically related to Petitioner. Further, the Board agreed with the AJ that Petitioner did not prove she was subjected to sex discrimination because she did not show that a similarly situated male supervisor retained his employment after failing to discipline a subordinate for not following Agency policy and who did not disclose that he had information about the subordinate's actions. The Board found that the comparator offered by Petitioner, a male employee who also saw the photo before it was posted to Facebook was not a supervisor and was in fact Petitioner's subordinate. The Board found that the AJ properly found that the Agency established its removal action and properly determined that Petitioner did not establish that she was subjected to reprisal or sex discrimination.
Petitioner then filed the instant petition. Petitioner argues, among other things, that the AJ erred in finding that she was not subjected to reprisal. She maintains that her claims of retaliation were also not fully considered. Further, she contends that the AJ erred in not finding that she was subjected to sex discrimination. Petitioner maintains that the AJ's findings are not supported by the record.
In response, the Agency maintains that Petitioner is essentially rehashing the same unsuccessful arguments she offered throughout the MSPB appeal process. The Agency requests that the Commission concur with the Board's findings.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c). In the instant case, we find that even if we assume arguendo that Petitioner established a prima facie case of sex discrimination and reprisal, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Petitioner, a supervisor, failed to exercise due diligence in the performance of her duties. Specifically, she did not reprimand a subordinate TSA officer for violating the Agency's policy of no cell phone use in screening areas while performing screening functions. The Agency also maintained that Petitioner was removed for lack of candor when she failed to disclose that she had seen the picture before the employee posted it on Facebook.
To show pretext, Petitioner argued that a male employee did the same thing that she did but was not removed. We find the MSPB Board correctly determined that Petitioner and this employee were not similarly situated as Petitioner was a supervisor and the comparator was not. We do not find Petitioner's contentions on appeal, which were previously addressed in the Board's findings, to be persuasive. We find that other than Petitioner's conclusory statements that the AJ erred she has provided no evidence that supports her contention. Accordingly, we find that Petitioner has not demonstrated that the Agency's nondiscriminatory reasons were pretext for discrimination.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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.s signature
Carlton M. Hadden, Director
Office of Federal Operations
__1/14/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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