Gwendolyn G.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Apr 11, 2017

0120152140 (E.E.O.C. Apr. 11, 2017)

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

Gwendolyn G.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120152140

Hearing No. 540-2012-00195X

Agency No. HS-TSA-00933-2011

DECISION

Complainant filed an appeal from the Agency’s final order dated May 20, 2015, finding no
discrimination with regard to her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In her complaint, filed on July 8, 2011, Complainant alleged discrimination based on race
(Black), sex (female), disability (low back pain), and in reprisal for prior EEO activity when
she was subjected to harassment in that:

(1) On unspecified dates, her workers’ compensation paperwork was deliberately and
repeatedly mishandled, causing a delay in her receipt of benefits;

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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(2) On August 14, 2011, she was told by a coworker that she “had to be shadowed”
because of the restrictions recommended by her doctor when she returned to work;

(3) On August 23, 2011, she was given a light duty assignment that forced her to change
her schedule from 12:30 pm until 9:00 pm to overnights and to work on the closed
checkpoint;

(4) On or about August 23, 2011, she was told that there was an “offer on the table,” that
she could accept or not, with the implication that her employment would be terminated
if she did not; and

(5) On October 26, 2011, her employment was terminated.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On April 17,
2015, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that Complainant had been employed by
the Agency since 2006. During the relevant time period at issue, she was a Transportation
Security Officer (TSO) screener at the Denver International Airport. As a TSO screener,
Complainant was required to work on the various positions at the Airport check points
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including Travel Document Checker (TDC), x-ray position, metal detector position, the
position where pat downs were done, and the Exit Gate. Complainant acknowledged that all
TSOs rotated through these positions every 30 minutes.

Complainant indicated that on March 15, 2010, she sustained an on the job injury to her back
and neck limiting her ability to work all rotating positions. Complainant’s restrictions included
no bending, no lifting, and needed to change her positions every 30 minutes. On May 4,
2010, Complainant was given a limited duty job working as a TDC and at the Exit Gate on A-
Bridge. Complainant also indicated that in July, 2011, her condition worsened and she was off
work for a month. When Complainant returned to work on August 14, 2011, her restrictions
included no repetitive bending or motion of neck, side to side or up and down, and no lifting
more than 10 pounds; and her doctor permitted her to work at the A-Bridge Exit Gate but not
as a TDC. Complainant indicated that during the relevant time period at issue, she was not
able to perform her position duties.

With regard to claim (1), a Human Resources Specialist denied she mishandled Complainant’s
workers’ compensation paperwork as alleged and stated that it was handled in the same manner
as everyone else’s paperwork.

With regard to claim (2), Complainant’s manager indicated that during the relevant time
period, she made a decision for Complainant to be shadowed by her coworker because she had
been decertified after being off work for more than three weeks and because her restrictions
included not to turn her head. Complainant acknowledged that during the relevant time period,
she was given a limited duty job offer to work solely at the A-Bridge Exit Gate due to her
conditions. The manager indicated that since Complainant was unable to turn her head, which
was essential in order to watch around and see who was coming behind her to make sure the
area remained secure, the manager did not feel Complainant could properly monitor the Exit
Gate which was a very busy area. Therefore, the manager decided to place an additional
officer at the Gate with Complainant.

With regard to claims (3) and (4), Complainant’s Deputy Federal Security Director (DFSD)
indicated that he made a decision to change Complainant’s schedule at issue consistent with her
restrictions. Specifically, the DFSD stated that in order to accommodate Complainant’s
conditions, i.e., no repetitive head or neck movements up and down or side to side, it was
determined that she could work and assume full responsibility for the position at a closed
checkpoint which was only opened when all other checkpoints were closed from 8:30 pm until
4:00 am. In that closed checkpoint, stated the DFSD, Complainant only needed to ensure that
unauthorized individuals did not attempt to enter the sterile area via the closed security
checkpoint; and the job allowed sitting or standing as tolerated and no repetitive moving of the
head up and down or side to side. As a result, Complainant’s working hours were changed to
8:15 pm - 4:45 am shift from her 12:30 - 9:00 pm shift. The DFSD stated that his decision to
change Complainant’s schedule was not based on discrimination as she alleged; rather it was to
accommodate her conditions. The DFSD stated that Complainant did not accept the foregoing
limited duty job offer which was effective August 26, 2011, and her rejection of the offer was
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reported to the Department of Labor. Complainant indicated that during the relevant time
period, she also had her second job in the overnight shift as a Correctional Officer for the
Colorado Department of Corrections. The record indicates that Complainant stopped coming
to work at the Agency after August 26, 2011.

With regard to claim (5), Complainant’s Assistant Federal Security Director (AFSD) indicated
that on October 5, 2011, he proposed Complainant’s termination at issue after the Agency
received the Department of Labor’s September 21, 2011 denial of Complainant’s requests for
leave for her on-the-job injury because she failed to provide proper paperwork required by the
Department of Labor. The AFSD stated that he then asked his staff if Complainant had
violated or failed to follow proper procedures and he was informed that from January, 2011, to
August, 2011, she had: 40 instances of Absences Without Leave; 20 instances of failure to
follow proper procedures; and 24 instances of failure to file appropriate document for
requesting leave. Based on the foregoing information, the AFSD indicated that he
recommended, and the DFSD ultimately decided, to terminate Complainant from her position
effective October 31, 2011. We note that although Complainant disputes a number of the
violations cited in the termination notice, she does not deny most of the violations cited
therein. In the termination notice, the DFSD also indicated that he considered Complainant’s
five years of service with the Agency and her three-day suspension on February 8, 2010, for
inattention to duty. Complainant acknowledges her receipt of the foregoing suspension.

Assuming (without deciding) that Complainant was an individual with a disability, we find that
Complainant has not shown that the limited duty offer was in violation of her medical
restrictions or she was denied a reasonable accommodation. Despite her claim, it is noted that
Complainant was not entitled to an accommodation of her choice, i.e., solely working at the A-
Bridge Exit Gate from 12:30 to 9:00 pm. Furthermore, there is no evidence in the record to
show that the Agency had a vacant funded position that required solely working at the A-
Bridge Exit Gate from 12:30 to 9:00 pm to which she might be assigned consistent with her
limitations. With regard to her claim of harassment, we agree with the AJ that Complainant
failed to establish the severity of the conduct in question or that it was related to any protected
basis of discrimination. After a review of the record, we agree with the AJ that Complainant
failed to show that there were any similarly situated employees not in her protected groups who
were treated differently under similar circumstances. Upon review, we find that Complainant
failed to show that the Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

0120152140

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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.

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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

April 11, 2017
Date