U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glynda S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020002499 Agency No. HS-TSA-01095-2019 DECISION On February 8, 2020, 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 January 6, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether the Agency in its Final Agency Decision (FAD) correctly determined that Complainant was not subjected to harassment based on race, color, and sex as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer (STSO), G-Band at the Agency’s Los Angeles International Airport (LAX) in Los Angeles, California. On May 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), and color (fair) when: 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. 2020002499 2 1. on March 20, 2019, a manager yelled at Complainant in front of passengers; and 2. on March 27, 2019, a manager instructed Complainant to alter statistics in the passenger tracking system. Claim 1 Complainant alleged that the Lead Transportation Manager (LTM) yelled at her in front of a coworker (C1) and passengers at the Terminal checkpoint. Complainant argued that her protected classes were factors because LTM only yelled at her and not at C1 who was outside of those classes. LTM did not recall making the alleged statements. LTM also denied that Complainant’s protected classes were factors in any of his actions. C1 indicated that LTM was speaking to both Complainant and C1 about LTM’s operational concerns at the Terminal checkpoint. C1 did not believe that LTM’s statements were based on Complainant’s protected classes. Claim 2 Complainant alleged that, during a supervisory meeting, LTM asked Complainant to lie about the passenger statistics entered in the Performance Management Information System (PMIS) and that LTM threatened to lower Complainant’s employee performance rating. Complainant argued that her protected classes were factors because LTM only asked her to alter PMIS numbers and did not make the same request of other STSOs who were outside those protected classes. LTM denied asking Complainant to alter statistics in PMIS. LTM indicated that, if information was not accurately entered in PMIS, then he would have asked Complainant to correct the information. LTM also denied that the alleged action was related to Complainant’s protected classes. A second coworker (C2), who attended the meeting in question, stated his belief that LTM wanted Complainant to alter the passenger statistics because the passenger information in PMIS for the date at issue was in red, and LTM wanted it to be green. C2 indicated her belief that LTM’s alleged request to alter information in PMIS was based on Complainant’s protected classes only because LTM was outside of those classes. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2020002499 3 CONTENTIONS ON APPEAL In her Appeal Brief, Complainant asserts that the Agency did not provide her with an election letter or a copy of the ROI following the filing of her formal complaint. Complainant requests that the Commission find that the Agency has not complied with applicable EEOC Regulations. Complainant also requests that the Commission deem her appeal as a request for a hearing. In its Appeal Brief, the Agency asserts that, on October 25, 2019, Complainant was sent an Election Letter, and the Investigative File (IF), including the “Sanitized” EEO ROI, via email. The Agency admitted that the Election Letter and IF/EEO ROI were not mailed or emailed to her representative due to administrative error. The Agency also noted that, in the email, Complainant was advised to contact her case manager with any questions; and that Complainant made no such contact. The Agency requests that the Commission affirm the FAD and dismiss Complainant’s appeal. 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”). ANALYSIS AND FINDINGS Complaint Processing We note Complainant’s contentions on appeal asserting that the Agency improperly processed her complaint with respect to the Agency’s alleged failure to provide Complainant with the IF, the ROI, and her Election Letter. However, the record corroborates the Agency’s assertions that these documents were provided to Complainant by email on October 25, 2019. The record reflects that Complainant was put on notice that she would receive documents via email. Complaint File at 21. Moreover, the record shows that Complainant submitted her formal complaint and received several documents from the Agency, via email without issue. Complainant did not indicate to the Agency at any point throughout the EEO process that she preferred an alternative method. Importantly, nothing in the record indicates that Complainant or her representative notified the Agency that Complainant did not receive the documents at issue throughout the EEO process. 2020002499 4 Nor did Complainant contact her case manager to raise any questions or concerns as indicated by the Agency in its October 25, 2019, email to Complainant. Therefore, Complainant’s requested relief is not granted. Harassment To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 intimidating, 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). Further, the incidents must have been “sufficiently severe or 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). 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 at 6 (Mar. 8, 1994). With respect to the merits of Complainant’s allegations, we AFFIRM the Agency’s determination that Complainant was not subjected to harassment based on her protected classes. C1 explained, and the record indicates, that LTM was merely performing his supervisory duties when LTM spoke to Complainant and C1 about LTM’s operational concerns at the Terminal checkpoint in Claim 1. LTM was also acting within his supervisory authority when he instructed Complainant to make changes to information in the PMS in Claim 2. Complainant may not have agreed with LTM’s instructions, but she failed to establish that discrimination occurred. Therefore, we find that Complainant has not shown that the alleged claims occurred due to her protected bases. 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. 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. 2020002499 5 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). 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. 2020002499 6 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 June 2, 2021 Date
