Debra E. White, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120063669 (E.E.O.C. Feb. 6, 2007)

0120063669

02-06-2007

Debra E. White, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.


Debra E. White,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

(Transportation Security Administration),

Agency.

Appeal No. 0120063669

Agency No. 05-0501

DECISION1

INTRODUCTION

On May 23, 2006, complainant filed an appeal from the agency's April 26,

2006 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. The appeal is deemed timely and is decided pursuant to 29

C.F.R. � 1614.405(a). For the following reasons, the Commission affirms

the agency's final decision.

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated

against complainant when she was allegedly subjected to hostile work

environment/harassment on the bases of sex and reprisal (prior EEO

activity), beginning in March 2003 and culminating in her March 25,

2004 forced resignation.

BACKGROUND

During the relevant time, complainant worked as a Transportation Security

Screener (TSS), SV-0019-D, at the Fort Smith Regional Airport, Fort

Smith, Arkansas. Complainant asserted that, after she filed a complaint

against a male Lead Security Officer on January 19, 2003, the Deputy

Federal Security Director (DFSD) denied her overtime and only issued

overtime to her when other screeners were unavailable for their overtime

shifts. The DFSD and the Lead Transportation Security Screener (LTSS)

testified that the overtime policy allowed all TSSs to compete equally

for overtime and that management was required to maintain a proper

gender mix when assigning overtime to ensure the availability of same

gender screening. The record reflects that, during the period covering

November 16, 2002 through October 4, 2003, complainant logged 233.15

hours of overtime, which as of that date was higher than any other TSS.

Complainant further testified that, on May 17, 2003, following her

complaint to the DFSD about her unfair treatment and denial of overtime,

the LTSS denied her request to switch shifts with another female officer,

and in August 2003, the LTSS instructed her to switch to the morning

shift beginning on September 4, 2003. Complainant then arranged her

doctor's appointments to coincide with her new morning schedule. However,

on September 3, 2003, the LTSS informed her that her shifts were not being

changed. As a result, complainant testified that she used all her sick

and vacation days to cover her previously scheduled doctor's appointments.

The agency maintained that management chose not to change complainant's

shift in an effort to avoid conflict with her doctor's appointments.

In September 2003, the DFSD issued all employees a confidential

questionnaire regarding the Fort Smith Airport. Complainant later

discovered that the DFSD allowed her immediate supervisor (Supervisor)

and another TSS (Screener-l) to read all of the employees' responses

to the questionnaire. Although DFDS stated in his affidavit that

he did not recall sharing the questionnaire as alleged, the record

reflects that the agency had no established policy concerning such

confidentiality, and others attested to the questionnaires being

shared in the workplace. Complainant's coworkers testified that the

Supervisor thereafter disliked complainant due to statements she made

in the questionnaire.

According to complainant, in October 2003, she requested limited duty

for four days due to a scheduled surgery, but the agency denied her

request and sent her home. She asserted that, in contrast, the agency

allowed a male employee to remain on limited duty for four months.

The DSFD did not recall denying complainant's request. He, however,

testified that a male employee who sustained an on-the-job injury was

allowed to work for three weeks with his arm in a sling and then was

placed in Continuous Pay Status.

In late December 2003, complainant testified that she heard the Supervisor

and Screener-l yelling at one another and using profanity in the office.

When she approached the break room where the argument was taking

place, she encountered Screener-1, and he inadvertently kicked her as

a he stormed through the entryway. She asserted that her ankle became

bruised, and she maintained that, although she reported the incident,

the agency took no action against Screener-l. The DFDS testified that

he considered Screener-1's encounter with complainant to be an accident

and asked him to be more cautious when entering and existing the doorway.

Complainant further maintained that all the male TSSs received a monetary

bonus for the 2003 performance year, but she and the four other female

TSSs did not. The DFDS asserted that, of the eleven TSSs that received

monetary awards, two were women. Furthermore, guidelines required

that TSSs receiving such awards could not have a record of official

disciplinary action during the award period. Complainant thus did not

qualify for an award as she possessed a record of official disciplinary

action for the 2003 performance year.

Complainant testified that, on December 25, 2003, she was issued

indefinite temporary duty assignment to one of three locations: Jonesboro,

Hot Springs or El Dorado. On January 17, 2004, the agency notified her of

her assignment to the Harrison Airport. However, on January 22, 2004,

after she made arrangements to report to the Harrison Airport, she was

issued new orders to report to the Little Rock Airport for a two-week

assignment. She explained that the abrupt change in duty assignment denied

her the use of her own vehicle, as well as a government-issued vehicle,

since "only the male screener was permitted to drive." When she arrived

at the Little Rock Airport on January 23, 2004, the agency placed her on

leave for two days. However, she was not allowed to return home during

her days off because she could not drive the government vehicle.

On January 26, 2004, when she informed the Arkansas Training Coordinator

(ATC) that she had a medical appointment, he directed to her to take the

government vehicle, until she informed him that she was not authorized to

drive it. Complainant testified that ten minutes before her departure,2

she was given permission to drive the government vehicle to and from

her appointment. The record reveals that TSA's policy required that

government vehicles be used for official business only.

On March 12, 2004, the DFSD issued Complainant a Notice of Proposed

Suspension (Notice), dated March 8, 2004. The Notice, providing a

one-day suspension without pay, stated that complainant failed to follow

instructions on January 14, 2004, when she refused to sign Travel Orders

(Orders) acknowledging receipt of the Orders. Complainant asserted that

she refused to sign the Orders because they were incomplete and failed

to indicate where or when she was to report. According to the agency,

however, the Orders as presented were standard and complainant failed

to follow instructions issued by both the DFSD and the Acting Screening

Manager (ASM). The DFSD determined that, considering the seriousness of

her misconduct, and her lack of a prior disciplinary record, suspension

was warranted. Complainant resigned from her TSS position by letter,

dated March 25, 2004, effective immediately.

Thereafter, complainant contacted an EEO Counselor and filed a formal

EEO complaint on March 30, 2004, alleging discrimination as stated above.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). In accordance with

complainant's request, the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that

she was subjected to discrimination as alleged.

In its final decision, the agency determined that the evidence did not

support complainant's claim that she was subjected to a hostile work

environment. Although complainant identified instances of conflict

between her and her supervisors and coworkers, the agency concluded

that the incidents were not motivated by her sex and were part of daily

workplace interaction. Moreover, the agency determined that the record

remained unclear as to whether complainant engaged in prior EEO activity

because her complaint was not clearly in response to discriminatory

treatment. The agency noted that the ASM and the Supervisor, who are

both female, had interpersonal conflict with complainant. Finally, the

agency determined that complainant failed to prove the work environment

was sufficiently severe or pervasive to create a hostile or abusive work

environment, or to be so intolerable so as to result in her resignation.

Complainant provides no statement on appeal.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a); See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of

the previous decision maker").

ANALYSIS AND FINDINGS

Harassment

Harassment of an employee that would not occur but for the

employee's race, color, sex, national origin, age, disability,

religion, or in reprisal is unlawful if it is sufficiently patterned

or pervasive. Garretson v. Department of Veterans Affairs, EEOC Appeal

No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985). The Commission's Enforcement Guidance: Vicarious

Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice

No. 915.002 (June 18, 1999) identifies two types of such harassment:

(1) harassment that results in a tangible employment action; and (2)

harassment that creates a hostile work environment. Based on the facts

of this case, we will analyze this matter as an allegation of harassment

that creates a hostile work environment.

To establish a claim of harassment, complainant must show that: (1) she

belongs to a statutorily protected class, e.g., sex and/or reprisal; (2)

she was subjected to unwelcome conduct related to sex and/or reprisal;

(3) the harassment complained of was based on sex and/or reprisal; (4)

the harassment had the purpose or effect of unreasonably interfering

with her work performance and/or creating an intimidating, hostile, or

offensive working 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). The harasser's conduct should be evaluated

from the objective viewpoint of a reasonable person in the victim's

circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,

EEOC Notice No. 915.002 (March 8, 1994).

In the present case, the Commission finds that complainant has

not established that she was harassed on the bases of her sex or

in reprisal. We find that the record is devoid of any evidence to

indicate that a discriminatory animus based on her protected classes

was the motivation behind management's actions. Specifically, we

find compelling the testimony of other employees that the Supervisor

disliked complainant after reading her responses to the questionnaire.

We note that all the employees' questionnaire responses were shared with

the Supervisor, and complainant has not identified any response made

by her in the questionnaire that might be linked with EEO activity.

We further find that complainant and the ASM also appeared to have

experienced interpersonal conflict. Finally, we note that, for every

tangible employment action taken by management, the agency articulated

legitimate nondiscrimination reasons for its actions which complainant

failed to show were prextual.3 Accordingly, the Commission finds that

complainant has failed to prove that she was subjected to harassment on

the bases of her sex or in reprisal.

Constructive Discharge

The central question in a constructive discharge case is whether

the employer, through its unlawful discriminatory behavior, made the

employee's working conditions so difficult that any reasonable person in

the employee's position would feel compelled to resign. The Commission

has established three elements which a complainant must prove to

substantiate a claim of constructive discharge: (1) a reasonable person

in the complainant's position would have found the working conditions

intolerable; (2) conduct that constituted discrimination against the

complainant created the intolerable working conditions; and (3) the

complainant's involuntary resignation resulted from the intolerable

working conditions. See Walch v. Department of Justice, EEOC Request

No. 05940688 (April 13, 1995); Christoph v. Department of the Air Force,

EEOC Request No. 05880575 (April 6, 1990).

In order to prevail on a claim of constructive discharge, complainant must

first establish that the agency engaged in prohibited discrimination. In

regard to her claim of constructive discharge, when complainant was

allegedly forced to resign because she was harassed beginning in March

2003 and culminating in her resignation, the Commission finds that

complainant has failed to substantiate her claim. She has not established

that she was subjected to harassment on the bases alleged and that the

agency knowingly permitted conditions of discrimination so intolerable

that a reasonable person subjected to them would feel compelled to resign.

Accordingly, we find that complainant failed to prove her claim that

she was forced to resign from her position as a TSS.

CONCLUSION

Therefore, after a careful review of the record, including arguments

and evidence not specifically addressed in this decision, we affirm the

agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

___2-6-07_______________

Date

1 Due to a new data system, your case has been redesignated with the

above referenced appeal number.

2 Complainant asserted that, although the ATC told her would get back

to her regarding the use of the government vehicle, he failed to do so.

3 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).

Complainant must initially establish a prima facie case by demonstrating

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks,

509 U.S. 502, 519 (1993).

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0120063669

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120063669