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