0120081768
11-06-2009
Helene Herskowitz, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Helene Herskowitz,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120081768
Hearing No. 520-2007-00123X
Agency No. HS05TSA001727
DECISION
On March 4, 2008, complainant filed an appeal from the agency's February
4, 2008 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final order.
ISSUES PRESENTED
The issue in this case is whether there was substantial evidence to
support the EEOC Administrative Judge's finding of no discrimination.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as an Assistant Federal Security Director (AFSD) for Regulatory
Inspections (K-band) at the agency's Long Island MacArthur Airport
(MacArthur Airport) in New York. The duties and responsibilities
of an AFSD for Regulatory Inspections include: advising the Federal
Security Director (FSD) on enforcement and compliance with airport and
aviation security directives; managing inspection programs; assessing
and investigating the security posture of the airport and air carriers;
monitoring compliance with security policies, regulations, and agreements;
directing the work of supervisors, program managers, and other subordinate
employees.
As an AFSD, complainant managed the regulatory programs for MacArthur
Airport and the Westchester County Airport. In addition, complainant
supervised three Aviation Security Inspectors (ASIs), attended security
meetings and conferences, and acted for the FSD in his absence.
In July 2005, the agency introduced a nationwide Hub-Spoke Realignment
and Reallocation Plan (plan) to alter the operational relationships of FSD
offices at various airports, create principal (hub) and dependent (spoke)
airports, and realign FSD staffing patterns. The plan called for larger
airport hubs to provide administrative support to multiple smaller airport
spokes, which meant that larger airports would gain FSD administrative
positions while smaller airports would lose some positions.
The plan designated LaGuardia Airport as a hub, and MacArthur Airport and
Westchester County Airport as spokes. In August 2005, local management
officials transferred MacArthur Airport's regulatory staff to LaGuardia
Airport, except for complainant, who remained at MacArthur Airport.
Although management did not change complainant's job title, grade,
or pay, it transferred all of the Aviation Security Inspectors working
under complainant to LaGuardia Airport, to be supervised by the male AFSD
at LaGuardia Airport in New York. In addition, some of complainant's
regulatory responsibilities were transferred to this male employee.
The result was that complainant now reported to the male employee with
regard to the regulatory program. Complainant expressed to management her
interest in relocating or transferring to various positions and locations.
The agency discussed with complainant the possibility of a job at John
F. Kennedy Airport.
On or around August 5, 2005, complainant received a series of anonymous
telephone calls for a period of about one and a half hours. An agency
official contacted the police, and complainant made a police report.
Complainant then requested that the agency obtain telephone records of
her work phone to determine the phone number of the anonymous caller;
however, the agency declined complainant's request. Complainant, on
her own initiative, subsequently contacted the district attorney to
obtain the telephone records. The records revealed that the anonymous
telephone calls were made on a cell phone by a former agency employee,
who was in the process of being rehired by the agency. Once the identity
of the anonymous caller was revealed, the agency stopped the rehiring
process for that individual.
On December 28, 2005, complainant filed an EEO complaint alleging that she
was subjected to discrimination on the bases of sex (female), religion
(Jewish), age (forty-nine years old), and reprisal for prior protected
EEO activity under Title VII when:
1. in August 2005, the agency diminished complainant's position
in authority and made her subordinate to a less-qualified individual at
another facility;
2. since August 2005, management altered complainant's duties,
threatened her with relocation, excluded her from meetings, and began
to direct complainant's staff without her input or knowledge;
3. the agency failed to adequately investigate complainant's
complaints of receiving harassing and threatening telephone calls.
The agency accepted for investigation claims 1 and 2; however, it
dismissed claim 3 because it determined that the telephone calls were
not sufficiently severe or pervasive enough to constitute hostile work
environment harassment.
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). Complainant timely
requested a hearing. The AJ held a two-day hearing in December 2007,
and heard testimony concerning all three claims. On January 10, 2008,
the AJ issued a decision.
The AJ found that complainant established a prima facie case of
discrimination on the bases of sex, religion, age, and reprisal. The AJ
then determined that the agency articulated legitimate, non-discriminatory
reasons for its actions, but complainant failed to show that those
reasons were pretexts for discrimination.
The AJ determined that the agency articulated a legitimate,
non-discriminatory reason for diminishing and altering complainant's
duties in that the agency's Hub-Spoke Realignment and Reallocation Plan
necessitated downsizing regulatory functions at complainant's airport
and reducing complainant's duties and responsibilities. The AJ found
that complainant failed to show pretext because AFSDs at other airports
were adversely affected by the reorganization plan, and it was reasonable
to expect disruptions and changes during a reorganization period.
For the claim concerning relocation, the AJ found that while there
were preliminary discussions of finding complainant a position at John
F. Kennedy Airport in New York, no such position was ever established
or filled.
With regard to complainant's exclusion from certain conferences and
meetings, the AJ found that only the AFSDs of hub airports were allowed
to attend these conferences and meetings, and Hub-Spoke Realignment and
Reallocation Plan had rendered complainant an AFSD of a spoke.
Concerning the threatening telephone calls, the AJ determined that
the agency reported the telephone calls to the proper authorities.
In addition, the AJ found that after the identity of the perpetrator
was discovered to be a former employee who was in the process of being
rehired, the agency stopped the rehiring process for this person.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency failed to meet its burden
of articulating legitimate, non-discriminatory reasons for its actions.
ANALYSIS AND FINDINGS
A. 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, � VI.B. (November 9, 1999).
B. Disparate Treatment Claims
To prevail in a disparate treatment claim, 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 that he or 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, 120 S.Ct. 2097 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). A complainant
may demonstrate pretext by "showing . . . weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the [[a]gency's]
proffered legitimate reasons for its action that a reasonable fact
finder could rationally find . . . unworthy of credence." Dalesandro
v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006). However,
proof that "the employer's proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the plaintiff's
proffered reason . . . is correct." Reeves, 530 U.S. at 146-47 (quoting
St. Mary's, 509 U.S. at 524). It is not enough for the Commission to
disbelieve the agency; rather, the complainant must persuade that
the agency intentionally discriminated against her based upon the
complainant's membership in a protected group. See id. at 147; see also
Lau v. U.S. Postal Serv., EEOC Appeal No. 0120065350 (June 13, 2008).
On appeal, complainant contends that the agency failed to articulate
legitimate reasons for diminishing and altering complainant's duties
mainly because local management acted on a purely discretionary basis
when it reorganized the regulatory staff before the agency had issued
a formal reorganization plan and accompanying rules. In addition,
complainant maintains that the agency failed to articulate a legitimate
reason for transferring complainant's managerial duties to the male AFSD
for Regulatory Inspections at LaGuardia Airport, given that complainant
was the more experienced and qualified AFSD.
Assuming, arguendo, that complainant established prima facie cases of
sex, religious, and age discrimination, the Commission finds that there
is sufficient evidence to support the AJ's findings that the agency
articulated legitimate reasons for its actions, and that complainant
failed to show by a preponderance of the evidence that those reasons
were pretexts for discrimination.
The individual who had been the FSD at MacArthur Airport in August
2005 testified that the initial reorganization plan had applied to all
staff members. According to this witness, he and the FSD of LaGuardia
Airport determined that all regulatory functions would be transferred to
LaGuardia Airport. The former FSD for LaGuardia Airport testified that
he decided to transfer the Aviation Security Inspectors working under
complainant to LaGuardia Airport because (1) he wanted to centralize the
office, (2) the majority of the work to be done was at LaGuardia, and
(3) it was more convenient to service all three airports from LaGuardia.
The former FSD of MacArthur Airport admitted on cross-examination that
complainant told him she would be willing to transfer to LaGuardia Airport
if she could be the AFSD for Regulatory Inspections for that airport.
However, the former FSD for LaGuardia Airport testified that the position
of AFSD for Regulatory Inspections for LaGuardia Airport was already
occupied by someone else, and the airport did not have another AFSD for
Regulatory Inspections position available. The former FSD for LaGuardia
Airport testified that he had no authority to replace the incumbent
AFSD with complainant, and the agency never implemented any business
rules requiring incumbents in the regulatory workforce to compete to
keep their jobs.
The former FSD of MacArthur Airport testified that he left complainant
in her regulatory position, in part, because the reorganization plan
had not yet matured, and transfers at that point were being done on
a voluntary basis only. This witness testified that he attempted to
get complainant involved in programs related to the airport's screening
operation, such as the screener safety program and worker's compensation.
However, in January 2006, the new FSD for LaGuardia Airport ordered that
complainant do purely regulatory work again.
To show pretext, complainant highlights testimony from the two
FSDs admitting that (1) they did not initially know what to do with
complainant's position at the time of the initial reorganization plan,
(2) they waited for the agency to issue business rules, but (3) the agency
never adopted formal rules for relocating regulatory staff positions.
Complainant argues that because the FSDs transferred complainant's
Aviation Security Inspectors in the absence of any formal rules or
procedures outlined by the reorganization plan, the agency cannot
rely on the plan to satisfy its burden of articulating a legitimate,
nondiscriminatory reason.
The Commission finds that the reorganization plan constitutes a
legitimate, nondiscriminatory reason satisfying the agency's burden of
production. The initial reorganization plan called for a realignment of
staff and personnel. In light of the plan's designation of LaGuardia
Airport as a hub and MacArthur Airport as a spoke, the local FSDs
testified that they decided to relocate complainant's ASIs to LaGuardia
Airport for the purposes of convenience, centralization, and the fact
that the majority of the work was to be done at LaGuardia. Furthermore,
the FSDs testified that the reason they did not transfer complainant to
LaGuardia was because that airport already had an AFSD for Regulatory
Inspections. Finally, the decision of the FSDs to exercise discretion
to keep complainant in her current position and wait for the agency to
issue further business rules does not necessarily demonstrate that the
FSDs intentionally discriminated against complainant based upon her
membership in a protected group.
With regard to complainant's original claim that the agency threatened
to relocate complainant to John F. Kennedy Airport, the former FSD for
LaGuardia Airport testified that he had discussed with the FSD at John
F. Kennedy Airport about the possible availability of a position for
complainant in that airport's regulatory workforce at complainant's band
level; however, the position was never established or filled.
With regard to being excluded from conferences, complainant maintains
that she, as the more experienced and qualified AFSD for Regulatory
Inspections, should have attended the conferences. However, the
Commission finds that complainant's disagreement with the agency's reason
for selecting the AFSD of a hub airport over the AFSD of a spoke airport
is insufficient by itself to show pretext.
C. Reprisal Claim
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). After a complainant raises
an inference of retaliation by circumstantial evidence, the complainant
can establish a violation if the agency fails to produce evidence of a
legitimate, non-retaliatory reason for the challenged action, or if the
reason advanced by the agency is a pretext to hide the retaliatory motive.
EEOC Compliance Manual, Section 8 (Retaliation) at 8-18 (May 20, 1998).
Pretext is typically proved through evidence that the agency treated
the complainant differently from similarly situated employees or that
the agency's explanation for the adverse action is not believable.
Id. at 8-19.
Assuming, arguendo, that complainant established a prima facie case of
reprisal discrimination,1 the Commission finds, for the same reasons
stated for the disparate treatment claims, that there is sufficient
evidence to support the AJ's finding that the agency articulated
legitimate, non-retaliatory reasons for its actions, and that complainant
failed to demonstrate pretext. In addition, the record shows that other
employees working at MacArthur Airport experienced a change or downgrade
in their job responsibilities after the issuance of the reorganization
plan.
D. Harassment Claim
Before reaching the question of whether the agency exercised reasonable
care to prevent or promptly correct any harassing behavior, the
Commission must first determine whether the complainant was subjected to
a hostile work environment or harassment. See, e.g., Thompson v. United
States Postal Service, EEOC Appeal No. 0120060791 (January 16, 2008).
To establish a prima facie case of hostile environment harassment,
the complainant must show that: (1) she is a member of a statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3)
the harassment complained of was based on the statutorily protected class;
and (4) the harassment affected a term or condition of employment, had the
purpose or effect of unreasonably interfering with the work environment,
or created an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. �1604.11. A single incident or group of
isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
At the hearing, complainant testified that on August 5, 2005, she
received a call from a female, who disguised her voice and asked
complainant whether complainant had a job. After complainant told the
caller that she did not know because she had just been briefed a week
earlier about the reorganization plan, the caller hung up. For the
next one and a half hours, the caller repeatedly called complainant's
work telephone number and hung up on her. One of the calls was placed
on speakerphone for a coworker to hear, and according to complainant,
the caller said, "You're out of a job, bitch. You bitch, you're out
of a job." Complainant became hysterical, and one of her ASIs answered
the telephone to try to speak with the caller.
The coworker who heard one of the phone conversations via speakerphone
testified that event was like a prank call in which the caller disguised
her voice. She testified that the caller spoke quickly and then hung
up the phone.
The Commission finds that the series of telephone calls was an isolated
incident that was not sufficiently severe to constitute discriminatory
harassment. The testimony from complainant and her coworker suggest
that the telephone calls, though frequent, were brief in duration, were
not physically threatening or humiliating, and appeared to be based
on complainant's employment status rather than on her membership in a
statutorily protected class. Therefore, the Commission upholds the AJ's
ultimate finding of no discrimination with regard to claim 3.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission finds
that there was substantial evidence in the record to support the AJ's
finding that complainant failed to prove discrimination. The Commission
affirms the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
November 6, 2009
Date
1 The Commission notes that a prior complaint was active during the
relevant time frame. See Herskowitz v. Department of Transportation,
EEOC Appeal No. 07A50031 (May 2, 2006).
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0120081768
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
10
0120081768