Chelsie L.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Nov 9, 2016

0120142101 (E.E.O.C. Nov. 9, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Chelsie L.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120142101

Hearing No. 410-2014-00052X

Agency No. HS-TSA-00381-2013

DECISION

The Commission accepts Complainant’s appeal from the Agency’s April 11, 2014 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 Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer (TSO) at the Hartsfield Jackson Atlanta International Airport in Atlanta,
Georgia. On February 23, 2011, Complainant conducted a pat-down search of a female
passenger. The passenger prematurely left the screening area, and Complainant asked the
passenger to return. The passenger was angry that Complainant had made her return and then
spoke to Complainant’s supervisor (S1). Complainant claims that S1 asked her to write a
statement about the incident and started yelling at her as she walked to the resource room to
write it. In the resource room, Complainant alleges that S1 stood over her yelling at her that
she was wrong. Complainant claims that co-workers overheard him yelling at her.

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.
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A few months later, Complainant claims that, while working on the exit lane at the
International Terminal, a passenger pointed out that there were shoes left behind in a bin.
Complainant contends that she pushed the bin up and it barely touched another passenger’s bin.
Complainant then observed S1 talking to that passenger. Complainant claims that S1 loudly
told her that the passenger told him that Complainant had thrown a bin at him. S1 denied
hitting the passenger, but Complainant alleges that S1 kept asking the same question several
times. Complainant claims that S1 then walked over to the customer service box.

Additionally, Complainant alleges that in May 2011, she learned that a passenger submitted a
negative comment card stating that Complainant was rude. Complainant believes that S1
encouraged the passenger to fill it out and did not follow normal procedure. Complainant
claims that she notified upper management officials that she was concerned that S1 was
encouraging passengers to submit negative comment cards about her.

On May 12, 2012, Complainant’s supervisor (S2) placed her on leave restriction. Between
February 2011 and March 2012, Complainant was absent eight times and tardy on seven
occasions. Complainant had previously received a letter of guidance due to attendance issues
from June 2010 to June 2011.

In October 2012, Complainant claims that S1 scrutinized her work and directed others to
follow and scrutinize her. Complainant alleges that on one occasion, she was having difficulty
with her KRONOS card (used to clock in) and asked a supervisor to assist her. The supervisor
walked back to the time clock with her, and she observed S1 sitting directly across from the
time clock. Complainant claims that when she went to her locker, a Lead Transportation
Security Officer was there and said “Your name was mentioned.” Complainant claims that she
knew then that S1 had sent him to watch her. Complainant alleges that in another instance, she
arrived late for a briefing. A Lead Transportation Security Officer (LTO1) approached her
later and asked her what time she got in that day. LTO1 then said “Some people want to
know” and walked into S1’s office.

On March 11, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American) and in reprisal for prior protected EEO activity as evidenced by multiple
incidents including, inter alia, S1 approached her, in the presence of passengers, and loudly
asked her if she had thrown a bin at a passenger; S1 encouraged passengers to submit negative
comment cards about her; S1 followed her for 200 feet, yelled at her, and pointed at her; she
was placed on leave restriction; and S1 began scrutinizing her work, yelling at her, and
directing others to follow and scrutinize her.

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ granted summary judgment in favor of the Agency and issued a
decision without a hearing on March 5, 2014.
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In the decision, the AJ initially determined that the alleged incidents were insufficiently severe
or pervasive to establish a hostile work environment. Additionally, the AJ found that there
was no evidence that the conduct at issue was based on discriminatory or retaliatory animus.
As a result, the AJ found that Complainant had not been subjected to a discriminatory or
retaliatory hostile work environment as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency as his decision was biased and had no basis in law. Complainant argues that she
would have responded to the Agency’s motion for summary judgment, but she was awaiting a
decision on another complaint. In addition, Complainant references that pending complaint,
which she claims should have been consolidated with the instant appeal. Accordingly,
Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

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.

As an initial matter, the Commission notes that on appeal, Complainant referenced another
EEO complaint (Agency No. HS-TSA-01627-2013) which she claims is a “continuation of the
issues in this case” and should have been consolidated with the instant appeal. The
Commission’s records indicate that there is a separate appeal pending on this subsequent
matter, EEOC Appeal No. 0120161160. It is within the discretion of the Commission to
consolidate two or more complaints of discrimination filed by the same complainant. We note,
however, to keep the issues clear, we decline to do so in this case. In addition, the
Commission finds that Complainant failed to identify any facts or evidence demonstrating bias
or any other reversible error resulting from the manner in which the AJ adjudicated her
complaint.

Hostile Work Environment

To establish a claim of harassment 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
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employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “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).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of her protected classes. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline, and
general workplace disputes and tribulations. For example, with regard to the February 2011
incident, S1 explained that he got involved when he observed a passenger angry about a pat-
down Complainant was conducting. ROI, at 327. S1 conducted an inquiry into whether
Complainant followed proper procedures and she began walking away from him. Id. at 327-
28. S1 confirmed that he informed Complainant that she was incorrect in her procedure by not
offering a private screening. Id. S1 stated that he only raised his voice after Complainant
walked away from him, and he called her name louder so she could hear him. Id. S1 noted
that he did not follow Complainant to the resource room; rather, he walked to his office which
was just beyond the resource room. Id. at 329.

As to the bin incident, S1 affirmed that a customer complained that his finger was caught
between two bins after Complainant pushed a bin in the exit lane. ROI, at 329. S1 denied
yelling at Complainant, and maintained that the incident was an accident and not serious
enough that a statement needed to be taken. Id. at 329-30. Additionally, S1 denied
encouraging passengers to submit negative comment cards against Complainant. Id. at 331.
S1 asserted that he informs passengers that they have the opportunity to write a comment card,
either negative or positive, and that he would only provide the name of a TSO for the comment
card if a passenger inquired. Id.

Regarding placement on leave restriction, S2 confirmed that he placed her on restriction based
on her attendance record which included eight unscheduled absences and seven instances of
reporting to work late between February 2011 and March 2012. ROI, at 189. Complainant
had previously been issued a Letter of Guidance regarding her attendance in August 2011. Id.
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at 252. Complainant was advised at that time that any future attendance issues could result in
her being placed on leave restriction. Id. at 253.

Finally, S1 denied scrutinizing Complainant’s work or directing others to scrutinize her. S1
noted that Complainant often went to the locker room without notification, and he had asked
her not to leave unless she notified a supervisor or lead officer. ROI, at 333. S1 added that it
is his job to know what the employees are doing if it appears they are going off checkpoint.
Id. S1 affirmed that he tried to harbor a relationship between the TSO and the LTSO;
therefore, he would sometimes go through the LTSO to speak to a TSO about issues such as
attendance. Id. at 334. LTSO1 confirmed that it was typical for LTSOs to ask attendance
questions of TSOs as LTSOs run the day-to-day operations on the floor and need to know if an
officer is late which could make it harder to organize the running of the checkpoint. Id. at
360.

Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown she was subjected to a hostile work environment.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence from which a reasonable
fact finder could conclude that the Agency's explanation was pretext for discrimination or
reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment
decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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:

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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 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. The requests 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 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 (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
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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

November 9, 2016
Date