U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbara C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021000223 Hearing No. 480-2018-00397X Agency No. HS-TSA-01811-2017 DECISION 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 October 6, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Field Canine Coordinator (FCC) assigned to the Los Angeles International Airport. On July 25, 2017, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her on the bases of sex (female), age (45), and in reprisal for a prior EEO complaint. By letter dated December 20, 2017, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 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. 2021000223 2 Whether Complainant was discriminated against and subjected to harassment on the basis of age (45), sex (female), and reprisal (prior EEO case) when: 1. On June 19, 2017, management issued Complainant a Notice of Proposed Seven Day Suspension. 2. On June 26, 2017, management issued Complainant a Notice of Proposed Ten Day Suspension. 3. On or around August 10, 2017, Complainant was issued a Memorandum to File for the ratification of unauthorized commitments. 4. On October 26, 2017, management issue Complainant a Three Day suspension. 5. On October 27, 2017, Complainant’s telework and alternate work schedule privileges were revoked. 6. On or around August 23, 2017 to December 1, 2017, Complainant was instructed to drive a government assigned vehicle (GOV) outside of her duty hours. 7. On or around October 1, 2017, Complainant was assigned a larger workload compared to other Field Canine Coordinators (FCCs). 8. On or around November 28, 2017 and December 5, 2017, Complainant worked hours for which she was not compensated.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On October 22, 2018, the Agency issued a Motion for Summary Judgment (Motion). Complainant did not respond to the Agency’s Motion. On September 18, 2020, the AJ issued a decision by summary judgment granting the Agency’s Motion and finding no discrimination. The AJ found that the Agency witnesses articulated legitimate, nondiscriminatory reasons for the disputed actions, which Complainant failed to establish was pretext for discrimination and/or retaliation. The AJ further found that Complainant failed to establish a case of harassment because she did not establish that the Agency’s actions were based on her protected classes. 2 The record reflects that some of the accepted claims were amendments to the initial complaint. 2021000223 3 On October 6, 2020, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment Analysis A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 2021000223 4 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claims (1) - (2), (4) Proposed Seven Day Suspension, Proposed Ten-Day Suspension, and Three- Day Suspension The Agency articulated legitimate, nondiscriminatory reasons for these actions. Regarding the Proposed Seven-Day Suspension, the record contains an affidavit from Complainant’s first-level supervisor (S1) (female, 54 years old at time of alleged incidents). Therein, S1 asserted that the Proposed Seven-Day suspension was issued for the following charges: 1) Supplying Incorrect Information to Time and Attendance, 2) Failure to Follow Directions, and 3) Unprofessional Conduct. ROI at 318. Specifically, S1 stated that regarding Charge 1, Complainant repeatedly supplied incorrect information for her time and attendance regarding premium pay for compensatory time, night differential, and hazardous duty. S1 further asserted that Complainant was counseled that she was to obtain prior approval for compensatory time and overtime but failed to follow this instruction. ROI at 319. The record contains a copy of the Proposed Seven Day Suspension issued to Complainant dated June 14, 2017. ROI at 388. The Proposed Seven day sets forth the various charges as specified in S1’s affidavit. ROI at 388-395. Regarding the Proposed Ten-Day suspension, S1, in her affidavit, asserted that the proposed suspension contained an additional charge for AWOL, in addition to the other charges set forth in the initial proposed Seven-Day Suspension. ROI at 323. The record also contains a copy of the Ten-Day Suspension issued to Complainant, dated June 26, 2017. The Proposed Ten-Day Suspension provided that this proposed suspension rescinded and superseded the June 19, 2017 Notice of Proposed Seven-Day Suspension. ROI at 529. The Proposed Ten-Day Suspension included an additional charge of AWOL, as specified in S1’s affidavit. ROI at 531. Complainant failed to establish that the Agency’s articulated reasons for the proposed suspension were pretext for discrimination. While Complainant asserted that her male co-workers were allowed to telework without prior approval (and not charged discipline), S1 denied that she was aware of this alleged conduct by Complainant’s male co-workers. ROI at 327. Regarding Complainant being issued a Three-Day Suspension, the record contains an affidavit from her third-level supervisor (S3) (male, 45 at the time of the alleged incidents) at the time. Therein, S3 asserted that that he was the deciding official for the three-day suspension. ROI at 311. He asserted that he reduced the proposed Ten-Day Suspension to a Three-Day Suspension. ROI at 311-312. 2021000223 5 S3 stated that he upheld the Charge for Supplying incorrect information on time and attendance records and the Charge for AWOL. However, he did not uphold the other two charges. ROI at 311. We find that Complainant failed to establish that the Agency’s articulated reasons for the three-day suspension was pretext for discrimination and/or retaliation. Claim (3)-Memorandum Regarding Unauthorized Commitments The Agency articulated a legitimate, nondiscriminatory reason for issuing the Memorandum Ratification of Unauthorized Commitment. The record contains an affidavit from a Supervisory Financial Specialist (F1). F1 asserted, in his affidavit, that in June 2017 he discovered there was an unauthorized commitment for canine vaccinations. He asserted that the invoice was sent to his department for payment. However, a purchase card transaction worksheet was not completed prior to the services. ROI at 361. F1 asserted that he believed that Complainant was responsible for the unauthorized commitment. Id. F1 asserted that he received an email from the Deputy Assistant Federal Security Director (DAFSD) indicating that Complainant was not responsible for the charge at issue. ROI at 362. F1 asserted that the memorandum to the file was never completed, and was dismissed. ROI at 362. The record also contains an affidavit from the DAFSD. Therein, he asserts that initially it was thought Complainant should receive the memorandum because she scheduled the vaccinations. DAFSD further asserted that after discussing the issue with Complainant and reviewing the issue, he determined Complainant was not responsible for the authorization of funds. ROI at 382. DAFSD further stated that the memorandum was never completed. ROI at 384. Complainant has not established that the Agency’s articulated reason for this action was pretext for discrimination and/or retaliation. Claim (5)-Revocation of Complainant’s AWS and Telework Privileges The Agency articulated a legitimate, nondiscriminatory reason for revoking Complainant’s AWS and telework privileges. S1 asserts that based on Agency policy she had to revoke the AWS and telework privileges because Complainant was issued discipline (the three-day suspension). ROI at 334. The record contains memoranda issued to Complainant from S1 revoking her AWS and telework privileges. The memoranda set forth that the privileges are being revoked for 12 months according to Agency policy, due to Complainant receiving disciplinary action (three-day suspension). ROI at 748-749. Complainant failed to establish that the Agency’s articulated reason was pretext for discrimination and/or retaliation. 2021000223 6 Claim (6)-Instructions Regarding GOV The Agency articulated legitimate, nondiscriminatory reasons for S1’s actions regarding her instructions involving GOV usage. Complainant asserted that S1 in November 2017 provided guidance for her to use the GOV during duty hours. However, Complainant asserted that S1’s guidance changed in December 2017 and S1 instructed her to use the GOV during her personal hours. ROI at 252. In her affidavit, S1 asserts that in November 2017, due to audits, she obtained further clarification on the GOV policy and was advised that employees could drive the GOV to their residences during their on-duty hours. Complainant asserts that she emailed this guidance to all of her FCCs. ROI at 771. After further research, S1 asserted that she determined that the November 2017 guidance was incorrect and that the Agency would deduct from the employee’s travel hours the time spent in normal commuting. ROI at 341-343. S1 in December 2017 sent another email to all FCCs (and not only to Complainant) correcting this guidance. ROI at 341-342, 773. Complainant failed to establish that the Agency’s articulated reason was pretext for discrimination and/or retaliation. As set forth above, the record reflects that S1 provided the same guidance regarding GOV usage to all FCCs. Claim (7)-Workload The Agency articulated legitimate, nondiscriminatory reasons regarding Complainant’s assertion that she was assigned a greater workload than other FCCs. S1, in her affidavit, asserts that Complainant was not assigned a larger workload than other FCCs. ROI at 347. S1 acknowledged that while Complainant was assigned more short notice observations than some named FCCs, these FCCs have more law enforcement teams than Complainant which results in more assignments in other areas than Complainant. ROI at 350. Complainant failed to establish that the Agency’s articulated reason regarding claim (7) was pretext for discrimination and/or retaliation. Claim (8)-No Compensation for Certain Hours The Agency articulated a legitimate, nondiscriminatory reasons for its actions regarding claim (8). S1, in her affidavit, asserts that Complainant was told on numerous occasions that she is required to schedule her day in a manner that allows for a thirty-minute meal break. S1 asserts that Agency guidance provides that employees may not skip a meal break in order to reduce the work schedule, or extend that workday to receive additional compensation and employees are not authorized to take meal breaks at the start of end of a shift. ROI at 355. Complainant failed to establish that the Agency’s articulated reason was pretext for discrimination and/or retaliation. Harassment Analysis To establish a claim of harassment based on race, sex, disability, age, or reprisal, complainant must show that: (1) she is a member of the statutorily protected class; (2) he 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 2021000223 7 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 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. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). In other words, 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 sex, age or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. As set forth above, in the “disparate treatment analysis” section, we found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not establish was pretext for discrimination and/or retaliation. Thus, Complainant has not shown that the actions at issue, which also form the basis of her harassment claim, were based on her protected classes. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021000223 8 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021000223 9 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 3, 2022 Date
