0120140243
08-10-2016
Eleanore M.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eleanore M.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120140243
Hearing No. 510-2011-00624X
Agency No. HSTSA178072010
DECISION
On October 28, 2013, Complainant filed an appeal from the Agency's September 26, 2013, 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., 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 pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ's) finding that Complainant failed to establish that she was subjected to discriminatory harassment on the basis of reprisal when: on December 9, 2010, the AFSD informed Complainant that he could not support her nomination to attend the Foreign Airport Assessments and Inspections course.
BACKGROUND
The facts as articulated in the AJ's decision are as follows:
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Inspector at the Agency's Aviation facility in Orlando, Florida. Complainant began working for the Agency in 2002. Prior to this, she worked in essentially the same capacity under the Federal Aviation Administration. The Agency had approximately 22 inspectors, and ten of them, including Complainant, were assigned to Aviation.
The Assistant Federal Security Director (AFSD), who began working in Orlando in December 2007, oversees the inspector department. Under the former AFSD, the majority of inspectors only worked Monday through Friday. However, when the current AFSD took over the position, he changed the inspectors' schedules to include working at the airport on the weekends. The record is clear that the AFSD sometimes spoke to, and about, employees in a disrespectful and unprofessional way.
In the summer of 2008, Complainant and four other female senior inspectors e-mailed the Agency's Chief Counsel and the Inspector General claiming that the AFSD and the Federal Security Director (FSD) were subjecting them to discrimination and a hostile work environment based on their gender and age. In addition to complaining about employment actions being taken, such as the change to their work schedules, the five female senior inspectors relayed that another TSI-Aviation manager who had worked with the AFSD at the Sanford International Airport, told one of them that the AFSD made derogatory comments about them, complained about their work ethic, and that he intended to make changes to the office with the intention of setting the inspectors up for disciplinary actions.
The internal complaint was investigated by the Agency's Management Inquiry Branch beginning in September 2008. The AFSD was interviewed during the Management Inquiry Branch investigation and based on the allegations made against him, deduced the identities of the women involved in the complaint that led to the investigation. The result of the investigation was that the allegations were unsubstantiated. The AFSD received notice of the Management Inquiry Branch investigation results in October 2009.
In March 2009, Complainant received a $1000 performance award for which the AFSD was the recommending official. In November 2009, Complainant was awarded an On-the-Job Training Instructor position by the AFSD. In February 2010, Complainant received a $1000 performance award for which the AFSD was the approving official.
In May 2010, Complainant broke her left foot. She returned to work shortly after her injury, but had physical limitations regarding walking and standing that prevented her from performing many of her regular job duties. Pursuant to established Agency policy, when an employee has a temporary injury, the Agency may offer a light duty assignment that modifies the employee's job functions. The injured employee is responsible for submitting updated medical documentation after every medical appointment or when requested by management. Pursuant to established Agency policy, an employee placed on light duty may not return to full duty until he or she submits updated acceptable medical documentation clearing him or her to return to full duty. Complainant notified her supervisor that she was injured. Her supervisor accepted Complainant's doctor's note limiting her to performing desk duties and did not request that Complainant provide updated medical documentation. During a discussion about Complainant's inability to perform the full duties of her position, including providing new employee training, the AFSD told Complainant's supervisor that if Complainant was unable to do her job she should medically retire, but he never discussed medical retirement with Complainant.
Complainant's supervisor changed about one month after her injury, and on June 25, 2010, her new supervisor asked Complainant to report to the airport to work at the Incident Management Center. Complainant informed the supervisor that she was unable to perform that duty because she could not walk significant distances. When the supervisor asked Complainant if she had medical documentation reflecting her limitations, Complainant provided a note from a doctor indicating that she had restrictions, but the note did not state any limitation as to walking distances. Based on the limited information contained in the doctor's noted, the supervisor asked Complainant to provide another note with more details and specifically addressing her restrictions with respect to walking. The supervisor also made a comment referencing carrying the Complainant herself if necessary. Ultimately, Complainant was not required to report to the airport on June 25, 2010. On June 29, 2010, the supervisor once again asked Complainant to report to the airport and told her that she still needed Complainant to submit more specific medical documentation. Complainant called her doctor's office and obtained a new note dated June 29, 2010, that stated that she should perform a sit-down job, with no walking greater than 200 feet twice daily and no ramp work, and that Complainant should wear her medical boot as needed. Complainant was not required to report to the airport on June 29, 2010.
On or about July 13, 2010, Complainant's doctor told her that she could return to work without any physical restrictions. Later that day, when questioned by the supervisor about the duties she was performing, Complainant advised her Supervisor that all of her physical restrictions had been lifted. Pursuant to Agency policy, the supervisor responded that Complainant needed to provide a written note from her doctor clearing her for full duty before she could resume her full duties. Complainant provided the medical clearance later that day and resumed working without restrictions.
In November 2010, Complainant and co-worker had a verbal altercation on the workroom floor during which the Complainant became very upset and yelled loudly. On or about December 8, 2010, Complainant e-mailed her supervisor, requesting that she be nominated for the Foreign Airport Assessment and Inspections course. The Foreign Airport Assessment and Inspections (FAAI) training course was required in order to be qualified to travel abroad to conduct inspections. One of the criteria for selection to the FAAI course was a demonstrated ability to communicate effectively with tact and diplomacy. On or about December 9, 2010, the AFSD e-mailed Complainant that he was unable to support her nomination because she had not consistently displayed tact in her communications with peers and supervisors. More specifically, he noted that in the past three years since he assumed his position, each of Complainant's supervisors had informed him that they had to speak to Complainant about her sometimes abrasive communications, including the recent incident between Complainant and her co-worker and several supervisors' observation of Complainant acting rude, hostile and uncooperative and having to be cautioned about her tone of voice.
On November 15, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of issues presented above. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on February 6-7, 2013, and issued a decision on August 23, 2013. The AJ found that Complainant failed to establish by a preponderance of the evidence that she was discriminated against on the basis of sex, age or reprisal with respect to any of the allegations alleged in the complaint. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends there is substantial evidence warranting reversal of the AJ's decision finding that she did not establish that she was subjected to discriminatory harassment as alleged. Specifically, Complainant alleges that there is substantial evidence in the record which shows that the Agency's asserted reasons for denying her FAAI training was a pretext for discrimination. Additionally, Complainant raises concerns regarding the AFSD's conflicting testimony with respect to his knowledge of Complainant's participation in prior EEO activity. Complainant submits that the Commission should reconsider the decision to accept any of the AFSD's testimony and statements in the instant matter due to his decision to misrepresent the truth in connection with the EEO investigations and processes at issue here.
In response to the appeal, the Agency argues that the AJ in the instant matter made a decision after considering all the evidence before her. This evidence included documents in the Report of Investigation, witness affidavits, witness deposition transcripts, and hearing testimony. The Agency contends that after reviewing all the evidence, the AJ made a decision that Complainant failed to establish she was discriminated against as alleged. According to the Agency, nothing the Complainant presents on appeal or contained in the record warrants overturning the AJ's decision.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
At the outset, we note that Complainant's complaint also contained additional claims. These claims concerned discriminatory harassment based on sex, age, and reprisal when: (1) on June 18, 2010, the AFSD made a hostile facial expression and physically turned away from Complainant to avoid speaking when he saw her wearing a medical boot for her broken foot; (2) on June 18, 2010, Complainant's former supervisor told her that the AFSD told her to try to get Complainant to retire if she could not perform her job due to a broken foot; (3) on June 25, 2010 another supervisor instructed Complainant to immediately report to the airport, and when Complainant responded that her medical restrictions prohibited her from walking long distances the supervisor told her to find someone to "carry you to the curbside;" and (4) on June 29, 2010, a supervisor asked Complainant to come to the airport to cover for an inspector who was on bereavement leave, and then refused to accept Complainant's doctor's note; on July 13, 2010, after Complainant's medical restrictions were lifted, the supervisor claimed Complainant could not walk in the airport and told her she needed to obtain another doctor's note authorizing her to return to work, formed the bases of the accepted complaint.
The AJ's decision finding no discrimination on these additional issues was also adopted by the Agency. Complainant, however, did not explicitly raise these matters on appeal. The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-9 (Aug. 5, 2015). As such, we will only address the matter of Complainant's FAAI training request being denied, and AFFIRM the finding of no discrimination regarding these additional issues.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that he 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie cases of discrimination based on reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for its decision to deny her participation in the FAAI taining. Additionally, we find that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. The record reflects that between August and December 2010, Complainant had several incidents of unprofessional, abrasive communications that were brought to the attention of the AFSD. There were also several instances brought to his attention concerning Complainant's behavior in 2008. Accordingly, we find that there is substantial evidence in the record that supports the AJ's findings that the record of Complainant's behavior and interactions with others in the workplace does not lend itself to an employee in which the Agency would have recommended for placement in the training course.
Complainant's appeal contention on why she should have been recommended to participate in the training included a summary of her prior experience as an inspector, and the time she spent working oversees. While these experiences are noteworthy, we do not find that they clearly demonstrate that she was a suitable candidate for this specific training opportunity. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find no evidence of unlawful motivation on the instant facts.
Harassment/Hostile Work Environment
With respect to any contention by Complainant's that she was subject to a hostile work environment with respect to the denial of her FAAI training request, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). While not in dispute in the instant appeal, we concur with the AJ's findings that the allegations complained of in the instant matter did not rise to the level of actionable harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that substantial evidence in the record supports the AJ's finding that Complainant failed to establish that she was subjected to discrimination and harassment on the basis reprisal when on December 9, 2010 the AFSD informed her that he could not support her nomination to attend the Foreign Airport Assessments and Inspections course. The Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
_8/10/16_________________
Date
1 This 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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