0120170625
03-20-2018
Letitia C.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Letitia C.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120170625
Hearing No. 551-2016-00043X
Agency No. HS-TSA-01705-2014
DECISION
On November 29, 2016, 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 November 14, 2016, 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.
ISSUE PRESENTED
Whether the EEOC Administrative Judge correctly determined that there were no genuine issues of material fact requiring a hearing in this case, and that Complainant failed to establish discrimination and/or unlawful retaliation when she was subjected to a hostile work environment and subsequently terminated during her probationary period after her return from maternity leave.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a probationary Transportation Security Officer at the Agency's Oakland International Airport facility in Oakland, California. She had been initially hired in September 2012.
Complainant filed a formal complaint of discrimination on August 30, 2014, claiming that the Agency discriminated against and harassed her based on her race (African American/Cuban), color (Black), sex (female/pregnancy), and reprisal (instant complaint/EEO contact)2 for a series of events after her return from maternity leave, to include her removal from probation on August 26, 2014. The following allegations were raised in support of her complaint:
1. On February 9, 2014, upon her return from maternity leave, Complainant requested a private room in which you could express breast milk, and was initially assigned a computer room and subsequently a supervisor's office, neither of which Complainant felt offered her privacy.
2. On an unspecified date, she raised her concerns with her supervisor, Supervisory Transportation Security Officer (STSO-1) of the unsanitary conditions in the control room, and he responded that it was her responsibility to clean the room.
3. In May 2014, she raised her concerns with STSO-1 that he allowed her co-workers to degrade her in front of passengers, other co-workers, and supervisors, and STSO-1 ignored her concerns.
4. In May 2014, a co-worker yelled at her stating that she was not permitted to be in the break room expressing breast milk, and that you needed to return to the floor. She advised STSO-2 (another supervisor) of the confrontation, however, STSO-2 failed to take any action.
5. In June 2014, she experienced multiple confrontations with STSO-1 concerning his approach to her which she considered hostile, and that he made false accusations against her and attempted to bully her.
6. On June 26, 2014, she was pulled into a meeting with STSO-1, STSO-2, and STSO-3, denied union representation, and was accused by the STSOs of taking 45 minute breaks to express breast milk. She reported the treatment by the STSOs to a Transportation Security Manager (TSM-1) who ignored her complaint.
7. On July 17, 2014, she approached STSO-3 about her concerns of lack of privacy for nursing. STSO-3 became confrontational and raised his voice, stating no accommodation would be made for her. Later that same day, she was forced by STSO-3 to pick up garbage near a checkpoint.
8. On July 24, 2014, TSM-2 refused to open an office door to accommodate her need to express breast milk.
9. On July 25, 2014, STSO-4 removed her from an x-ray machine after she advised him that a co-worker was not following procedures. She asked to speak with a manager and requested union representation. STSO-4 denied her access to a manager, refused to permit her to obtain representation, raised his voice and physically blocked her passage to a manager's office, causing her to have a stress-induced seizure.
10. Management refused to file a workers' compensation claim for the July 25, 2014 incident.
11. On August 26, 2014, she was terminated.
The Agency investigated her complaint. Complainant provided affidavits, documentary evidence and identified witnesses who were interviewed as part of the investigation. After its completion, 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.
After each party had an opportunity to conduct discovery, the Agency filed a Motion for Summary Judgment on October 4, 2016. Complainant, who was represented by legal counsel, failed to raise any objection or otherwise provide a response.
On October 5, 2016, the AJ issued a decision by summary judgment in favor of the Agency. In reaching this decision, the AJ found the Agency established the following undisputed facts:
On September 23, 2012, Complainant began a two-year probationary period as a Transportation Security Officer at Oakland International Airport. While on probation, Complainant took maternity leave and returned to duty on or around February 9, 2014, as a lactating mother who needed to take occasional breaks to pump her breastmilk.
For her lactation breaks, Complainant initially utilized a supervisor's cubicle within the Agency's training room, which could be locked from the inside. After Complainant complained about the size and privacy of that space, the Agency allowed Complainant to utilize the computer server room, which was accessible only by a code known by the Agency's management team. Two Supervisors assisted in cleaning the room. Another female officer also utilized this room for pumping breastmilk.
Complainant was displeased with both spaces, although each space met the requirements of the Office of Personnel Management guidance to provide a space free from intrusion from co-workers and the public. No record concerning dissatisfaction with the room or arrangement by this second female officer is found in the evidence submitted in this case.
On or around April 26, 2014, Complainant and her supervisors discussed comments made by two co-workers to Complainant, which she deemed disrespectful during a dispute about her lactation schedule. One of the co-workers subsequently apologized to Complainant for making her feel "disrespected."
Similarly, on or around June 27, 2014, Complainant sent an email to Agency management complaining about various coworkers and supervisors, alleging that she was being "falsely accused, bullied, disrespected and retaliated against for doing my job." Complainant discussed three different incidents, two of which concerned being criticized for how she handled inspections of passengers and/or their traveling documentation.
The third incident related to her having been accused by Supervisor 1 of taking a 45-minute lactation break. The following week, Complainant had other disputes with the same co-worker about the handling of cough syrup at the passenger security checkpoint and with Supervisor 1 about his acceptance of out-of-state identification.
On July 17, 2014, Complainant and Transportation Security Manager (TSM 2) engaged in a verbal dispute over moving Complainant's unpacked lactation equipment within the computer server room to an area where the manager was storing other materials. Complainant had left her lactation supplies in plain sight.
A week later, on July 24, 2014, Complainant and TSM 2 had another encounter when he refused to enter the access code to the computer server room upon Complainant's request. Instead, he directed Complainant to ask a supervisor to enter the code.
On July 25, 2015, Complainant and Supervisor 5 engaged in a verbal dispute concerning the Supervisor's request that Complainant prepare a witness statement. The incident arose when Complainant accused a fellow officer of failing to properly screen an item. Complainant refused to prepare the witness statement. Instead, Complainant took her lactation break, contacted her union representative and insisted on seeing a manager. Supervisor 5 again asked that she sign the witness statement before she spoke to a manager. Complainant refused and went to the restroom.
Upon exiting the restroom, Complainant again refused to sign a witness statement or discuss the matter. Complainant left her work area despite being told by the Supervisor to remain. As she was walking, she collapsed and was taken to a hospital.
Although Complainant believed that workplace stress caused her collapse at work, Complainant did not provide, within the deadline, the workers' compensation forms.
Throughout August and September 2014, Agency human resources (HR) personnel and other managers corresponded with Complainant to complete the workers' compensation claim forms, including those forms substantiating her absences from work. Complainant refused to meet with Agency HR personnel and to accept a certified letter containing a workers' compensation application prepared by HR personnel.
By decision dated August 26, 2014, the Agency terminated Complainant during her probationary period, effective September 3, 2014. The Agency cited Complainant's failure to follow policies, disrespectful conduct towards multiple supervisors, and failure to follow directions.
Based on this evidence, the AJ concluded that Complainant failed to establish her claims of discrimination or unlawful retaliation. On November 14, 2016, the Agency issued a final order adopting 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.
On appeal, Complainant argues that the AJ erred in issuing a decision by summary judgment. However, 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. Complainant, although represented by legal counsel, failed to respond to the motion for summary judgment before the AJ. Complainant has submitted a lengthy argument on appeal, including two additional unsworn statements and a number of allegations not previously presented. However, while Complainant has, in a general sense, asserted that facts are in dispute, she has failed to point with adequate specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Complainant had the opportunity to conduct discovery. There is nothing in the record or evidence otherwise provided by Complainant to demonstrate the need for a hearing. Accordingly, the AJ properly proceeded to decide this matter based on the record. The evidence submitted for the first time at the appeal stage by Complainant will not be considered as there is no showing that such evidence was previously unavailable for timely production to the AJ. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A.3.
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.
Hostile Work Environment
In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to 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 his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, color, sex, pregnancy and/or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994); Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Here, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. We find that the interactions between Complainant and her supervisors and coworkers, described by her to be hostile and confrontational, have been proven to be work-related, and we find no evidence that they were based on her statutorily protected bases. Moreover, the weight of the evidence supports the AJ's determination that Agency management appropriately accommodated Complainant's needs as a lactating mother by providing her with reasonable break time to pump breast milk and a private space to do so. Finally, the evidence indicates that any failure in filing a workers' compensation claim for Complainant resulted from her own actions in refusing and/or failing to properly submit the appropriate paperwork.
In sum, we conclude that the evidence of record fully supports the AJ's conclusion that Complainant failed to prove that her protected bases played any role in the events she alleged in support of her hostile work environment claim.
Disparate Treatment - Termination during Probationary Period
In order 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 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, we find that the Agency articulated a legitimate, non-discriminatory reasons for the alleged discriminatory actions, and Complainant has failed to prove, by a preponderance of the evidence, that the asserted reasons were pretext for unlawful discrimination, and that these actions were instead motivated by discriminatory/retaliatory animus. According to responsible management officials, the primary basis for Complainant's termination prior to the end of her probationary period stemmed from the events of July 25, 2014, when she refused to comply with the instructions of three different supervisors and her "disrespectful conduct" was witnessed by her coworkers and members of the public. The record shows that Complainant had claimed that another officer had failed to properly screen an item, but when asked by supervisors to prepare/sign a written statement concerning the matter, she refused to do so. The termination notice indicated that Complainant left her duty station without authorization and refused numerous supervisory requests to cooperate with the Agency's investigation of the July 25th incident. The weight of the evidence fully supports the AJ's conclusion that it was Complainant's misconduct and not her protected bases that resulted in the decision to terminate her employment.
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 FAD adopting the AJ's decision, concluding no discrimination or retaliation was established.
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
____3/20/18______________
Date
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.
2 Complainant also alleged the discrimination was based on her parental status. However, parental status is not protected by the statutes administered by this Commission.
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