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

Equal Employment Opportunity Commission

Feb 11, 2016

0120143107 (E.E.O.C. Feb. 11, 2016)

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

Cleora W.,1
Complainant,

v.

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

Appeal No. 0120143107

Hearing No. 520-2012-00263X

Agency No. HS-TSA-01175-2011

DECISION

Complainant filed an appeal from the Agency’s July 29, 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.
In a post-hearing interim decision issued on September 19, 2013, an Equal Employment
Opportunity Commission Administrative Judge (AJ) found that Complainant had been
subjected to reprisal and ordered that a second hearing be held on the question of relief. On
March 27, 2014, the AJ issued a decision pursuant to which he awarded the following
remedies:

1. Compensatory damages in the amount of $10,000.00;

2. Good-faith effort to transfer Complainant within three months of the date the decision
becomes final;

3. Attorneys fees in the amount of $10,774.19;

4. Costs in the amount of $640.30;

1This 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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5. Training for all employees, including supervisors at the facility in Newark, New
Jersey, within six months of the date that the decision becomes final; and

6. Posting of notice of the discrimination finding.

With regard to item (2), the AJ found that a transfer was appropriate because of an atmosphere
in which Complainant found herself severely isolated existed that could not be ameliorated
despite the Agency’s efforts to remove the supervisor from the facility with whom Complainant
had been having problems. The AJ expressed doubt that the Agency could remedy the
atmosphere through training alone.

On April 24, 2014, the Department of Homeland Security’s Office of Civil Rights and Civil
Liberties (OCRCL) issued a final order in which it fully implemented the AJ’s March 2014
decision. The order directed the Agency to submit a compliance report every thirty days until
it achieved full compliance.

By email dated June 5, 2014, Complainant notified OCRCL that the Agency had not fully
complied with its April 2014 order. Complainant stated that the official notice that
discrimination had occurred had not been posted until May 30, 2014, and had been posted so
inconspicuously that it failed to convey the message that a violation had occurred. By email
dated June 15, 2014, Complainant notified OCRCL of two additional instances of non-
compliance. First, she pointed out that two program assistants did not attend the mandatory
EEO training that was conducted in the Newark Field Office on June 13 and 14, 2014.
Second, she reported that although the parties were close to working out the details of the
transfer agreement, the Agency had not addressed her concern regarding the need for a change
in her first and second-line supervisors.

In its final decision, OCRCL concluded that the Agency had substantially complied with the
AJ’s March 2014 order for relief. With regard to item (5), OCRCL found that the two
individuals who had missed the training on June 13 and 14, 2014, were given the training on
June 23, 2014, as established by the presence of their names on the sign-in roster. As to item
(6), OCRCL found that the fact that the notice had been posted a few days late did not prevent
a finding of substantial compliance, and that a second copy of the notice had been posted in a
high traffic area. Finally, regarding Complainant’s request for change in her supervisors,
OCRCL stated that because this issue was unrelated to the relief ordered by the AJ and was
part of a pending EEO complaint, it could not be addressed. See Report of Compliance from
the Agency to OCRCL dated July 1, 2014.

On appeal, Complainant contests the Agency’s final decision on its merits. In response, in
addition to reiterating its compliance with items (5) and (6), the Agency maintains that it
complied with item (3) in that during its negotiations with Complainant, it offered her four
vacant positions, including one in San Francisco, but that Complainant declined all four. See
Affidavit of Compliance Manager dated October 10, 2014.

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After reviewing the entire record, including the parties’ contentions on appeal, we find that the
Agency fully complied with the order for relief issued by the AJ on March 27, 2014.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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.

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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

February 11, 2016
Date