Eryn M.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Jul 23, 2019

0120181335 (E.E.O.C. Jul. 23, 2019)

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

Eryn M.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120181335

Hearing No. 530-2014-00103X

Agency No. HSTSA005422013

DECISION

On March 7, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 28, 2018 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Manager,
SV-0343-K, at the Agency’s Office of Intelligence & Analysis, in Annapolis, Maryland.

On January 8, 2013, Complainant contacted an EEO Counselor and filed a formal EEO
complaint on April 26, 2013, alleging that the Agency discriminated against her on the basis of
reprisal for prior protected EEO activity when:

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.
1. On April 1,2013, the Office of Professional Responsibility (OPR) issued
Complainant a Letter of Reprimand based on the TSA Office of Inspection; and

2. On November 27, 2012, management requested that Complainant participate in an
interview during a TSA Office of Inspection investigation.

At the conclusion of the investigation, Complainant was provided a copy of the investigative file
and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding no discrimination.

The AJ concluded that Complainant failed to establish a prima facie case of reprisal because she
failed to establish a nexus between her prior protected activity and Letter of Reprimand. The AJ
found that the:

[R]eprimand was issued by [the Unit Chief of OPR], who was a neutral body and
independent from the Complainant's Managers [against whom Complainant had
filed a prior EEO complaint]. OPR was not aware of Complainant's prior EEO
activity and had the benefit of an independent investigative record to reach its
determination. Thus, there is no evidence of a causal connection, pattern, or
discriminatory animus to find liability against the Agency on this claim.

The AJ further found that under a harassment theory, the actions complained of were
insufficiently severe as to create a hostile work environment and that Complainant failed to
establish that the actions were based on her past protected EEO activity.

The Agency’s final action implemented the AJ’s decision. The instant appeal followed.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is not appropriate.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. While
Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Where, as here, Complainant does not have direct evidence of retaliatory animus, a claim
alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish
a prima facie case by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations, that is, its articulated reason for its
action was not its true reason but a sham or pretext for discrimination or unlawful retaliation. See
Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

The record shows that OPR’s decision to interview Complainant and ultimately issue a
reprimand was based in part on a recommendation by Complainant’s supervisor (“S”) and on
testimony provided by management officials who were either identified by Complainant as the
responsible management officials in prior EEO complaints, or at a minimum were aware of
Complainant’s participation in EEO activity. This is sufficient to state a prima facie case. We
next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We
note that the Letter of Reprimand states that it was being issued because Complainant was
disruptive in the workplace. The letter further stated:

The facts show that since 2010 and continuing through August 2012 your
behavior has been disruptive, particularly in your conduct toward supervisors in
open weekly meetings. The evidence indicates that your negative demeanor and
criticisms of co-workers has had an adverse effect on morale, For example in
November 2010 during a weekly Program meeting you interrupted [Program
Manager (“PM”)] while he was speaking. You disagreed with [PM]’s program
management approach and voiced your displeasure to the entire team. When [PM]
and [Complainant’s third level supervisor (“S3”)] tried to intervene to regain
control of the meeting you continued to argue. You raised your voice and
continued to interrupt [PM] and [S3]. You eventually got up and abruptly left the
meeting while [PM] was speaking.

The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine;
McDonnell Douglas. Following a review of the record we find that Complainant has failed to
meet this burden. Complainant points to affidavits from coworkers who averred that others,
specifically including PM and S3, also raised their voices at meetings, yet they did not face
similar discipline. We note, however, that the comparators identified by Complainant were not
similarly situated with herself. We find in this regard that there is a difference between a
manager or a person conducting a meeting raising their voice and interrupting others, as opposed
to an employee attending a meeting doing so, as it is the prerogative of management or a person
conducting a meeting to move things along and maintain everyone’s focus on relevant topics,
which may at times necessitate such types of behavior. The same, however, cannot be said of a
subordinate employee raising her voice and interrupting managers. Furthermore, we note
Complainant has not alleged that any comparator walked out of a meeting while the presenter
was still speaking.

We note that Complainant’s own witnesses do not deny that Complainant raised her voice or
walked out of the November 2010 meeting as alleged in the Letter of Reprimand. Complainant
has also presented no evidence suggesting that anyone at OPR harbored retaliatory animus
against her.

Finally, to the extent that complainant is alleging that she was subjected to a hostile work
environment, we find 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 (March 8, 1994). A
prima facie case of hostile work environment is precluded based on our finding that Complainant
failed to establish that any of the actions taken by the Agency were motivated by discriminatory
animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No.
01982923 (September 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not met her burden of establishing a
material issue of fact, or that reprisal occurred, and we AFFIRM the Agency’s final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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

July 23, 2019
Date