U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerita G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020005331 Hearing No. 430-2019-00526X Agency No. HS-TSA-02720-2018 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 August 18, 2020, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency’s Norfolk International Airport in Norfolk, Virginia. On November 12, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (Caucasian), sex (female), disability (physical), and in reprisal for prior protected EEO activity, when: 1. in September 2017, management denied Complainant her requested shift bid; 2. in July 2018, management issued Complainant a leave restriction; 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. 2020005331 2 3. in September 2018, management did not respond to Complainant’s complaint of harassment; 4. from September 15, 2018, to September 20, 2018, management suspended Complainant from work duty; 5. in October 2018, management charged Complainant with 3.75 hours of absent without official leave (AWOL); 6. on February 7, 2019, management denied Complainant’s scheduled break; 7. on February 7, 2019, a manager directed Complainant to uncross her arms and “fix her face”; 8. on February 15, 2019, management required Complainant to complete a Fitness for Duty form; and 9. on February 21, 2019, management denied Complainant’s request for a regularly scheduled break. 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. On September 9, 2019, the Agency filed a motion for the partial dismissal of claims 1 and 2, arguing that these claims were not timely raised with an EEO Counselor. Complainant opposed the Agency’s motion. On February 4, 2020, an AJ (AJ-1) granted the Agency’s motion, after finding that Complainant did not provide sufficient evidence to excuse her lengthy delay in contacting the EEO Counselor. Consequently, AJ-1 determined that claims 1 and 2 would not be adjudicated as discrete claims, but would only be considered as background information. On March 24, 2020, the Agency filed a motion for a decision without a hearing, which Complainant opposed. On June 16, 2020, a second AJ (AJ-2) issued a Notice of Intent to Issue Decision Without a Hearing (Summary Judgment for Agency) and Order for Supplemental Briefing. AJ-2 noted that, after considering Complainant’s claims of alleged harassment as a whole, the alleged incidents were not so severe or pervasive to have altered the conditions of her employment. Moreover, the Agency articulated legitimate, nondiscriminatory reasons for each incident. AJ-2 found, regarding claim 1, that the Agency applied the terms of the Collective Bargaining Agreement for shift bids. As for claim 2, AJ-2 determined that the Agency issued Complainant a sick leave restriction due to her pattern of leave abuse, taking sick days before or after her regular days off. 2020005331 3 Additionally, AJ-2 observed that management officials spoke with Complainant and gave her an opportunity to improve her attendance issues before issuing the sick leave restriction. With respect to claim 3, AJ-2 noted that Complainant admitted that she received a response to her July 2018 email, and a management official engaged with her over a series of emails regarding her concerns. As for claim 4, the Agency suspended Complainant for three instances of AWOL and failure to follow leave procedures. While Complainant asserted that she traded shifts with another employee, the Agency had previously informed her that the traded shifts were canceled due to the corresponding employee’s departure from the Agency. The cancellation of the trades meant that Complainant would need to come to work on those dates, despite prior approval; however, Complainant did not report for work on said dates. Regarding claim 5, Complainant requested leave for medical appointments, but when the Agency discovered that Complainant’s doctor’s appointments were after her shift, her leave request was denied, and she was marked as AWOL. AJ-2 found that Complainant was not denied her breaks (claims 6 and 9) and that a manager instructed Complainant to uncross her arms to show that she was approachable to passengers (claim 7). AJ-2 determined that Complainant was required to complete a Fitness for Duty form, claim 8, because she submitted medical documentation stating that she needed to eat every 2.5 to 3 hours, which raised concerns about her ability to perform the essential job function of standing continuously for four hours, without a break, during the passenger checkpoint screening process. Consequently, the Agency sought to ensure that Complainant was medically qualified to perform the full and unrestricted duties of a Transportation Security Officer, as required by the Aviation and Transportation Security Act. AJ-2 ordered the parties to submit specifically requested information for the claims. After receiving responses from both parties, AJ-2 issued a decision without a hearing on July 13, 2020, granting summary judgment in favor of the Agency. Based on a review of the entire record, AJ- 2 concluded that there were no genuine issues of material fact for which a hearing would be necessary and further development of the record was unlikely to lead to a finding of discrimination. The Agency issued its final order adopting AJ-2’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 2020005331 4 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 she 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 has failed to establish such a dispute. As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See id., at Chap. 9, § IV.A.3. On appeal, Complainant did not contest the dismissal of claims 1 and 2 as discrete claims; or the findings of no discrimination regarding claims 3, 6, 7, 8, and 9. As such, we will only address Complainant’s arguments for claims 1, 2, 4, and 5, in the instant decision. Through her representative, Complainant only proffers unsupported arguments that the Agency’s actions were discriminatory or retaliatory. For example, as for claims 1 and 2, Complainant asserts that management officials treated male officers more favorably and “did not like her interracial personal relationship”. Additionally, Complainant contends that the suspension and underlying AWOL charges (claims 4 and 5), occurred because a management official “deliberately revoked” her sick leave to retaliate against her. However, mere allegations, speculation, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). In her appeal brief, Complainant presents various emails from management officials in an effort to support her claims. However, we find that these emails corroborate the Agency’s legitimate, nondiscriminatory reasons for issuing Complainant a sick leave restriction (i.e. thirteen incidents of unscheduled sick leave) and charging her with AWOL (i.e. failing to report to work when her shift trades were canceled). Complainant has not shown that the Agency’s proffered reasons are not worthy of belief. Moreover, her bare assertions, that management officials discriminated against her, are insufficient to prove pretext or discrimination. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of AJ-2’s decision and the evidence of record, as well as Complainant’s arguments on appeal, we conclude that AJ-2 correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020005331 5 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. 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). 2020005331 6 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 March 30, 2022 Date
