0120072086
06-11-2009
Cynthia L. Herrera, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Cynthia L. Herrera,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072086
Hearing No. 550-2007-00244X
Agency No. HS 06-TSA-0016171
DECISION
Complainant filed an appeal from the agency's final action dated October
19, 2007, finding no discrimination with regard to her complaint. In her
complaint, dated April 8, 2006, complainant alleged discrimination
based on sex (female), race (Caucasian), national origin (Native
American/Hispanic), and in reprisal for prior EEO activity when:
(1) On September 9, 2005, she was issued a 3-day Suspension;
(2) On September 14, 2005, she was issued a Letter of Counseling;
(3) On October 5, 2005, she was issued a poor performance evaluation;
(4) During September and October 2005, she overheard coworkers commenting
upon a sexually explicit video, and a female coworker directed sexually
explicit comments towards her;
(5) On January 1, 2006, she was issued a 14-day Suspension; and
(6) On March 17, 2006, she suffered an injury when she was pushed by a
Lead Transportation Security Officer.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On
September 6, 2007, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action implemented the
AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged actions. During the relevant
time period, complainant was employed as a Transportation Security
Officer at the Reno Airport.
With regard to claim (1), the agency stated that complainant was issued
the 3-day suspension for violating the agency policy by taping managers'
and coworkers' conversations without their knowledge. With regard to
claim (2), complainant was issued the Letter of Counseling for failure
to adhere to leave restriction procedures. With regard to claim (3),
complainant was issued the alleged low performance rating based on her
dependability, teamwork, attitude and disciplinary actions.
With regard to claim (4), the agency stated that in response to
complainant's complaint about the subject matter, they separated
all employees involved while the matter was investigated. After its
investigation into the matter, the agency determined that complainant's
claim of sexual harassment could not be substantiated. The AJ stated
and we agree that these incidents were not severe or pervasive enough
to create a hostile work environment.
With regard to claim (5), complainant was issued the 14-day suspension
for failure to follow leave restriction procedures, AWOL, and failure to
follow supervisory instructions. With regard to claim (6), the identified
individual indicated that he was behind complainant entering into the
break room and he accidentally bumped into her when she stopped abruptly.
Complainant acknowledged that the identified individual apologized to
her after the incident.
After a review of the record, the AJ determined and we agree that
complainant failed to show that she was treated less favorably than
a similarly situated employee under similar circumstances or that any
agency actions were motivated by discrimination.
Accordingly, the agency's final action is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 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
6/11/09
__________________
Date
1 It appears that the instant complaint is also referred as Agency No. HS
06-TSA-001374.
2 The record indicates that complainant was subsequently terminated from
her employment at the agency on April 25, 2006, which was not raised by
her in the instant complaint.
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0120072086
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013