Janay K.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120171620 (E.E.O.C. Dec. 18, 2018)

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

Janay K.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120171620

Hearing No. 510-2016-00272X

Agency No. HS-TSA-01948-2014

DECISION

On March 31, 2017, 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 24, 2017, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency discriminated against, and harassed Complainant based on her age, national
origin, race, and sex, when two managers berated, belittled, and yelled at her; she was issued a
proposed 5-day suspension; she was issued a proposed removal; and she was forced the take leave
without pay until her retirement.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation
Security Officer (LTSO), SV-1802-F, at the Agency’s Orlando International Airport in Orlando,
Florida.

On August 30, 2014, Complainant needed another female employee to act as a witness to perform
a Resolution Pat-Down of a female passenger. She did not see anyone available, and made her
request over the radio. A Supervisory Transportation Security Officer (STSO1) (age 44, Hispanic,
female, White) responded. The pat-down was conducted in a private screening area. After they
finished, Complainant stated that STSO1 pointed a pen in her face, and yelled, “you don’t need to
call for a female witness over the radio.” Another Supervisory Transportation Security Officer
(STSO2) (age 36, American, male, Caucasian) soon joined them, and allegedly began yelling that
Complainant needed to show STSO1 some respect. Complainant stated that when she tried to exit
the screening area, STSO2 put his arms up, and blocked her exit. Complainant then went to see
the Transportation Security Manager (TSM) (age 37, American, male, Caucasian) to notify him of
the incident. Report of Investigation (ROI) at pgs. 129-130.

On December 6, 2014, another Supervisory Transportation Security Officer (STSO3) (age 39,
Hispanic, female, White) issued Complainant a Notice of Proposed Five (5) Calendar Day
Suspension for five (5) specifications of Absent without Leave (AWOL); eight (8) specifications
of Failure to Follow Leave Procedures; and fifty-seven (57) specifications of tardiness. ROI at
pgs. 177-193. Starting in December 2014, Complainant began to request leave pursuant to the
Family and Medical Leave Act (FMLA).

On January 16, 2015, the Deputy Assistant Federal Security Director (DAFSD) (age 35,
unspecified national origin, male, Hispanic) issued Complainant a Notice of Proposed Removal
citing that she was “Not Medically Qualified for the LTSO Position.” The Agency’s Medical
Review Officer (MRO) reviewed the medical documentation Complainant provided for her FMLA
leave, and determined that Complainant was medically disqualified from her position. Specifically,
MRO noted that Complainant has a condition which affects her ability to perform the full and
unrestricted duties of her position. ROI at pgs. 282-285.

Complainant stated that after she was presented with the proposed removal, she was escorted out
of the building. Complainant retired, effective February 27, 2015, and had to request Leave
Without Pay (LWOP) until her retirement. ROI at pgs. 132-134.

On December 22, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against, and subjected her to harassment, on the bases of race (Caucasian), national
origin (not specified), sex (female), and age (57) when:

1. on August 30, 2014, two supervisors berated, belittled, and yelled at her in front of
passengers, after she requested assistance with a resolution pat-down;

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2. on December 6, 2014, STSO3 and TSM issued her a proposed 5-day suspension;2

On March 5, 2015, Complainant amended her complaint to add the following claims:

3. on January 15, 2015, DAFSD issued her a Notice of Proposed Removal, escorted
her out of the building, and sent her home without pay; and

4. on January 16, 2015, management placed her on LWOP, until her retirement on
February 27, 2015.

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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew her request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

The Agency found that the record did not support Complainant’s allegation that she was subjected
to a hostile work environment. For incident 1, the Agency found that STSO1 and STSO2 denied
berating, belittling, or yelling at Complainant. They both stated that it was Complainant who spoke
loudly. Regarding incident 2, TSM stated that he proposed Complainant’s suspension due to her
attendance issues. Complainant had already received a reprimand, and the next step in the
progressive discipline process was a proposed suspension.

For claim 3, DAFSD proposed Complainant’s removal based on the Agency’s guidelines after
MRO determined that Complainant was not fit for duty. He added that once Complainant
surrendered her gear, she could not move unaccompanied in the secured areas of the airport. With
regards to incident 4, DAFSD stated that Complainant was placed on LWOP because she did not
have any other leave available, and LWOP was the only way for her to remain employed without
an interruption in benefits. The Agency concluded that the managers did not subject Complainant
to a hostile work environment based on her protected categories.

Complainant filed the instant appeal, and provided a statement in support of her appeal. The
Agency filed an opposition brief on May 24, 2017.3

2 Complainant did not receive a final decision on the proposed suspension because she was issued
a proposed removal a few days later. ROI at pg. 58.

3 The Agency requested, and was granted, an extension to file its opposition brief through May 24,
2017.
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CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency did not mention the August 30, 2014, video
footage showing the harassing actions of STSO1 and STSO2, which she asserts was a “fatal error”
in the Agency’s decision. Complainant states that STSO2 raised both of his arms to block her exit
for the “sole purpose of continued verbal abuse,” and that due to the intimidating, hostile and
offensive work environment, she was “physically shaking and crying uncontrollably.”
Complainant also states that since she was “forced” to retire, she suffered financial loss and
depression.

The Agency argues that Complainant has not established a prima facie case of discrimination
because she did not provide any evidence showing a comparator, outside of her protected classes,
who was treated more favorably. Additionally, the Agency states that even assuming that
Complainant established a prima facie case of discrimination, she has not shown that the Agency’s
legitimate, nondiscriminatory reasons are pretext for discrimination.

With regards to Complainant’s harassment claim, the Agency asserts that she has not shown that
she was subjected to severe or pervasive conduct. In this case, Complainant has only alleged one
isolated incident with two managers. Since the video does not contain sound, Complainant’s
allegation that they raised their voices cannot be determined. Further, the Agency argues that
Complainant has not shown that the managers’ conduct was based on her race, national origin,
sex, or age.

ANALYSIS AND FINDINGS

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

As an initial matter, it is unclear if Complainant is alleging a constructive discharge/retirement
claim in her appeal when she states that she was “forced into retire.” However, we note that the
Commission cannot address an issue raised for the first time on appeal. The record shows that after
Complainant contacted the Agency to amend her complaint to include incidents 3 and 4, it sent her
a notice accepting the claims on September 16, 2015. Complainant had been previously instructed
to contact the Agency within five (5) calendar days if the claims in her complaint were not correctly
identified, and there is no indication that she contacted the Agency to allege a claim of constructive
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discharge/retirement. ROI at pgs. 117-120. Accordingly, this decision will not address a claim of
discrimination for a constructive discharge/retirement.

Additionally, we note that in its final decision, the Agency only analyzed Complainant’s complaint
as a claim of a hostile work environment. However, when the Agency accepted her complaint, it
noted that Complainant alleged discrimination for the incidents as discrete claims, in addition to a
claim of harassment. For the purposes of this decision, we will treat the incidents as individual
claims of discrimination, in addition to an overall claim of a hostile work environment.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For complainant to prevail, she must first establish a prima facie case of discrimination 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once complainant
has established a prima facie case, the burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). If the agency is successful, the burden reverts back to complainant to demonstrate
by a preponderance of the evidence that the agency’s reason(s) for its action was a pretext for
discrimination. At all times, complainant retains the burden of persuasion, and it is her obligation
to show by a preponderance of the evidence that the agency acted on the basis of a prohibited
reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460
U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
age, national origin, race and sex, we find that the management officials articulated legitimate,
nondiscriminatory reasons for their actions. For claim 1, both STSO1 and STSO2 denied yelling
at Complainant. STSO1 stated that Complainant was upset because she felt that no one wanted to
help her, and STSO1 responded that Complainant had the authority to request the assistance of
any female officer nearby to assist her. STSO2 stated that when he arrived, he was not aware of
the ongoing conversation, and asked why STSO1 was not on her lunch break. STSO2 also
informed Complainant that she could ask for one of the female officers from the floor. After
Complainant informed TSM of the incident, he reviewed the video footage, and decided against
taking any disciplinary action against anyone. ROI at pgs. 142,148,154.

Regarding claim 2, TSM stated that he proposed Complainant’s suspension because she had a
number of instances of AWOL; failure to follow leave procedures; and tardiness. ROI at pg. 154.
For claim 3, DAFSD stated that Complainant’s fitness for duty determination came from
Headquarters, and that once an employee is deemed unfit for duty, it was his responsibility to
propose removal.
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He added that Agency policy states that every officer must maintain fitness for duty, and failure to
do so means that the employee can no longer remain in the position of a Transportation Security
Officer. DAFSD stated that once an employee returns a badge, an escort is needed to take the
employee out of the secure area of the airport. ROI at pgs. 158-159.

For claim 4, DAFSD stated that when employees receive proposed removals, they are placed on
administrative leave for seven (7) calendar days, after which, they are placed on an appropriate
leave status (i.e. annual leave, compensatory time, sick leave, or LWOP). He stated that
Complainant was required to use LWOP because she did not have any other leave available. ROI
at pg. 160.

Complainant has not shown that the reasons are pretext for discrimination. Complainant can
establish pretext in two ways: “(1) indirectly, by showing that the employer’s proffered
explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. On appeal,
Complainant argues that the video footage shows STSO1 and STSO2 yelling at her, and STSO2
raising his hands to block her from exiting the private screening area. She argues that she was
harassed to the point where she was shaking and crying. Additionally, in her affidavit, Complainant
stated that her peers and passengers were “looking wide-eyed” at them.

Upon careful review of all the video footage contained in the record, we are not convinced that it
shows STSO1 or STSO2 yelling at Complainant, or STSO2 blocking her from leaving the privacy
room. We note that some of the interaction was out of the direct view of the cameras because the
conversation mostly took place in the enclosed private screening area.4 However, two cameras
capture the moment when Complainant leaves the privacy area, and the footage does not show
STSO2 attempting to block Complainant. He is off to the side, just inside the doorway, and
Complainant reached out and touched STSO2 as she walked past him out the door.

We also note that no one in the surrounding area reacted to the alleged commotion. One employee
walks right outside the privacy area, casually putting a lanyard around his neck, and it does not
seem as if he hears anything out of the ordinary. A nearby family does not even look in the direction
of the privacy room, let alone appear “wide-eyed.” Additionally, at no point is Complainant crying
or shaking. We find that Complainant has not shown any evidence proving pretext for
discrimination. Accordingly, we find that Complainant has not shown that the Agency
discriminated against her based on her age, national origin, race, or sex.

Harassment

4 The Agency provided footage from five (5) different cameras, which showed the incident from
different angles.
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As discussed above, we found that Complainant did not establish a case of discrimination on any
of her alleged bases. Further, we conclude that a case of harassment is precluded based on our
finding that Complainant failed to establish that any of the actions taken by the Agency were
motivated by her protected bases. 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 AFFIRM the Agency’s final decision finding that Complainant
has not shown by a preponderance of the evidence that she was discriminated against, or harassed,
as alleged.

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).
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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

December 18, 2018
Date