Joni M.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Feb 1, 2016

0120142884 (E.E.O.C. Feb. 1, 2016)

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

Joni M.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.

Appeal No. 0120142884

Hearing No. 570-2013-00211X

Agency No. HS-TSA-21976-2012

DECISION

On August 15, 2014, Complainant filed an appeal from the Agency’s July 17, 2014 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. The Commission deems the appeal timely and accepts it for de novo
review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

Complainant served as the Chief Compliance Officer (CCO) in the Business Management
Office of the Transportation Threat Assessment and Credentialing Service (TTAC), located at
the Agency’s headquarters in Arlington, Virginia. Pursuant to an organizational realignment
that was first announced in FY 2011, the TTAC was dissolved and its functions transferred to
several newly created sub-organizations, including the Office of Security Policy and Industry

1This 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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Engagement (OSPIE). Complainant was notified on January 12, 2012, that she would be
reassigned to the OSPIE’s Business Management Division.

On April 3, 2012, Complainant filed an EEO complaint in which she alleged that her former
first, second, and third-line supervisors in TTAC (S1, S2, and S3) discriminated against her on
the bases of race (African-American), sex (female), and in reprisal for having filed a previous
EEO complaint by removing her position from TTAC and transferring it to OSPIE. She
claimed that since the realignment changed her reporting chain and reduced her level of
responsibility, it constituted a demotion. However, neither S1 S2, S3, nor the Director of
OSPIE’s Business Management Division, who became Complainant’s new second-line
supervisor, characterized the change as a demotion. They noted that Complainant’s official
title, job functions, pay, and pay band remained the same as it was before the realignment.
Complaint File (CF) 60-73, 1463, 1476-77, 1483-84, 1487-88, 1491, 1497, 1499-1500.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing, but over her objections, the AJ assigned to the case
ruled that the case was appropriate for Summary Judgment and issued a decision on May 28,
2014, without holding a hearing. 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.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving organizational change
and resulting personnel shifts unless there is evidence of a discriminatory motivation on the
part of the officials responsible for making those decisions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a
hearing on her disparate treatment claim regarding her transfer from TTAC to OSPIE,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether S1, S2, or S3 were motivated by unlawful considerations of her race, sex, or
previous EEO activity when they implemented the realignment. See 29 C.F.R. § 1614.109(g);
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact as to the existence of an unlawful motivation by presenting documents or sworn testimony
showing that the reasons articulated by S1, S2, or S3 for moving her into OSPIE are
pretextual, i.e., not the real reason but rather a cover for race and sex discrimination or
reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450
U.S. at 253. Evidence of pretext can include discriminatory statements or past personal
treatment attributable to S1, S2, or S3, comparative or statistical data revealing differences in
treatment across racial or gender lines, unequal application of Agency policy, deviations from
standard procedures without explanation or justification, or inadequately explained
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inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC
Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why she believed that her reassignment from TTAC to OSPIE
was discriminatory, Complainant responded that S1, S2, and S3 treated White males more
favorably by creating new positions for them, and that her previous complaint was being
litigated in January 2012, when the realignment was announced. CF 1467-70. She also
averred that she since reported to lower levels of management in the new position, the transfer
was an adverse employment action. CF 1465-66. She cites our decision in Hill v. Department
of Health & Human Services, EEOC Appeal No. 01880401 (May 27, 1988) in support of her
position. In Hill, the Commission found that being reassigned from a legislative assistant
position to a secretarial stenographic position was an adverse employment action because it
entailed a loss of professional status, a status that took the employee six years to earn. In this
case, Complainant’s CCO position was merely realigned to a successor sub-organization.
Complainant retained the same pay, the same pay band, the same job title, and the same job
functions after the realignment. Unlike the situation in Hill, Complainant suffered no loss of
prestige or professional status. Consequently, we disagree with Complainant that her transfer
amounted to an adverse employment action or that she was treated less favorably than similarly
situated White male employees.

As to Complainant’s reprisal allegation, her entire claim appears to rest on the notion that the
acts complained of in and of themselves are sufficient to establish a causal connection with her
prior EEO complaint. This is simply not true. The laws the Commission enforces cannot
prevent an employer from making decisions with which its employees disagree unless those
decisions are rooted in a statutorily proscribed motivation. And while we agree with
Complainant that the close temporal proximity between her prior EEO complaint and her
transfer to OSPIE is enough to establish a prima facie case of reprisal, we find that she did not
provide evidence of any of the indicators of pretext described above. She has not submitted
any sworn statements from other witnesses or documents that contradict the explanation
provided by S1, S2, S3, or the Director of OSPIE’s Business Management Division, or which
call their veracity into question. We therefore find, as did the AJ, that no genuine issue of
material fact exists with respect to Complainant’s discrimination claim in connection with her
job being transferred from TTAC to OSPIE.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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 (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

February 1, 2016
Date