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

Equal Employment Opportunity Commission

Jul 18, 2014

0120114287 (E.E.O.C. Jul. 18, 2014)

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

,
Complainant,

v.

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

Appeal No. 0120114287

Agency No. HSTSA012142010

DECISION
Complainant filed an appeal from the Agency’s final decision 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq. The Commission deems the appeal timely and accepts it for de novo review
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a part-time
Transportation Security Officer at the George Bush Intercontinental Airport in Houston, Texas.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (Caucasian), national origin (Not Specified), sex (female), and age (Year of
Birth: 1989) when:

1. the Lead Transportation Security Officer called Complainant a “pretty girl” and
commented that he could “get [her] moved up real quick” if “she used her
assets;”

2. the Lead Transportation Security Officer introduced an unidentified co-worker
to her and told the coworker, “Watch her. She steals;”

3. a Transportation Security Officer told Complainant and a Supervisory
Transportation Security Officer that she “hated” Complainant because “she was
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lazy”; the Supervisory Transportation Security Officer then told Complainant to
“work harder;”

4. another Supervisory Transportation Security Officer called Complainant a
“prima donna,” a “girly girl,” and told her “thanks for just being here,” instead
of commending her for her work;

5. a Transportation Security Manager denied Complainant the right to have a
neutral person in the room during her termination meeting;

6. the Assistant Federal Security Director for Screening terminated Complainant’s
employment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ).1

In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged. This appeal
followed.

ANALYSIS AND FINDINGS
Hostile Workplace Harassment (Claims 1- 5)

In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the
statutorily protected classes alleged; (2) she was subjected to unwelcome conduct related to her
membership in those classes; (3) the harassment complained of was based on her membership
in those classes; (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 Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). 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.

,
23 U.S. 75 (1998).
Here, although the comments and actions alleged to have been directed at Complainant were
insulting and boorish, they were not sufficiently severe or pervasive to constitute actionable
harassment. In addition, only the two comments addressed to Complainant as a “girl” can be
said to be based on any of Complainant’s statutorily protected classes. Therefore, Complainant
has failed to establish a prima facie case of harassment.

1 Because Complainant was under 40 years of age at the time of the alleged harassment, the
Agency did not investigate based on Complainant’s age.
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Disparate Treatment Discrimination (Claim #6, termination)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
The Agency explains that Complainant was terminated during her probationary period because
of her poor attendance, including excessive unscheduled absences, and repeated tardiness.
According to her supervisor, Complainant “just could not make it to work for the start of her
shift.” Report of Investigation (ROI) at 176-77. This is a legitimate, nondiscriminatory reason
for the Agency’s actions. Complainant does not dispute that she had attendance shortcomings
but argues that two male probationary employees hired at the same time as her had equally
poor attendance. However, the record shows that the comparatives she cites each had two
incidents of tardiness during the relevant period while Complainant had been late on at least
eight occasions during that same period. ROI at 177. Having failed to establish that the
Agency’s reason for terminating her employment was a pretext designed to conceal
discriminatory animus, Complainant’s claim of disparate treatment discrimination fails.

CONCLUSION
For the foregoing reasons, the Agency’s final decision finding no discrimination is
AFFIRMED.

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.
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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
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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

Date
July 18, 2014