U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harriet M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021002443 Hearing No. 550-2017-00451X Agency No. HS-TSA-00338-2017 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 1, 2021, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at Seattle-Tacoma International Airport in Seattle, Washington. On February 20, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on race (African-American), sex (female), and age (42) 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. 2021002443 2 1. On or about August 1, 2016, Complainant was told that if she did not complete her Electronic Questionnaire for Investigations Processing (eQip), she would be terminated; 2. On or about August 21, 2016, Complainant was issued a Letter of Counseling; 3. In or around October 2016, Complainant’s supervisor yelled at her; and 4. On or about October 7, 2016, Complainant was terminated. 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 requested a hearing. The AJ assigned to the case determined that the complaint did not warrant a hearing and, over Complainant’s objections, issued a decision by summary judgment in favor of the Agency. The AJ found, assuming for the sake of argument that Complainant could establish a prima facie case of discrimination, that the Agency articulated legitimate, nondiscriminatory reasons for each of Complainant’s claims. Regarding Claim 1, the AJ determined that Complainant initially completed her eQip form in January 2016, prior to her start date at the Agency in May 2016, and that the form had expired before the Office of Personnel Management could schedule a background investigation. On August 1, 2016, Complainant was copied on an email from the Coordination Center Manager (CCM), which stated in part, “[a]pparently [Complainant] needs to complete her background investigation paperwork. . . . Please see that she responds and completes this process as soon as reasonably possible. Failure to do so could result in her being removed from her position.” This echoed an earlier email sent to Complainant by a Personnel Security Assistant on July 25, 2016, which stated in part, “Your e-QIP and signature forms must be completed on or before COB, Tuesday, August 2, 2016. Failure to comply with this request within the specified timeframe may result in corrective action, up to and including termination of Federal employment.” CCM told the investigator that the language in his email constituted a “generic email notice.”2 Complainant needed to resubmit part of the form on the eQip website, but she had some difficulty while attempting to do so. The Personnel Security Assistant offered to help Complainant in accessing her eQip account. The AJ concluded that Complainant completed the eQip process on August 6, 2016, and that at no point during this process did any Agency employee or manager make reference to her race, sex, or age.3 2 This statement from CCM was not a sworn statement made in an affidavit. Rather, CCM communicated to the investigator by email that he had no direct contact with Complainant and that his role was simply to provide a generic notice that Complainant had not completed the forms for her background investigation. Based on this information, the investigator “determined that further testimony was not needed from” him. In any event, the record shows that the email was sent to several Agency employees, with Complainant copied on the email, and that it was indeed a generic notice regarding the fact that Complainant’s investigation paperwork was incomplete and that failure to complete it could result in termination. 3 There is no record evidence that Complainant received any disciplinary or corrective action with regard to her eQip forms, nor does she allege that she did. 2021002443 3 Regarding Claim 2, the AJ found that Complainant received a Letter of Counseling (LOC) from her supervisor (S1), Supervisor Transportation Security Officer, which stated that Complainant was being counseled for “improper screening and inattention to duty.” The LOC went on to state that on July 7, 2016, and August 12, 2016, Complainant had identified threats in carry-on bags while working as an X-ray operator but on both occasions had “failed to remove the bag for additional screening.” The LOC advised Complainant that “any future incidents of misconduct may result in disciplinary action, up to and including removal from Federal service.” Regarding Claim 3, the AJ found that the supervisor (S2), Lead Transportation Security Officer, who had yelled at Complainant was no longer an employee of the Agency at the time of the investigation. Complainant claimed that on one occasion, S2 “went off” on her in front of passengers because, as the AJ concluded, Complainant “admittedly failed to keep track of the time when she was to exchange duties with another” Transportation Security Officer. During this same incident, Complainant also claimed S2 told her he was “tired of this shit,” but he did not make any remarks about her race, sex, or age. S2 declined to participate in the investigation. S1 averred that soon after the incident, she “had a sit down meeting to counsel” S2 about the matter. The AJ concluded that while S2 may have had “impropriate communication with” Complainant, S1 provided counseling to S2 after Complainant told her what happened. Regarding Claim 4, the AJ found that Complainant received a notice of her termination on October 7, 2016, written by another supervisor (S3), Assistant Federal Security Director- Screening. As articulated in the notice, Complainant was terminated during her probationary period because of incidents on July 5, July 7, August 12, August 27, and September 4, 2016. The first three incidents occurred when Complainant was working as an X-ray operator and “failed to divert a threat carry-on,” as she never pulled certain bags for inspection after a possible threat was identified. The events on July 7 and August 12, 2016, were the basis of the LOC Complainant received on August 21, 2016. The incidents on August 27 and September 4 occurred when Complainant was working as a walk-through metal detector (WTMD) operator. On August 27, Complainant failed to refer a passenger to secondary screening after the WTMD sounded an alarm. Later that day, she performed a secondary screening test on a passenger’s “boot and hands,” but allowed the passenger to proceed before receiving the results of the test. On September 4, Complainant had again failed to refer a passenger to secondary screening after the WTMD alarm sounded. Based on these incidents, the notice of termination found that Complainant had “failed to follow Management Directive 1100.73-5, Employee Responsibilities and Code of Conduct, Section, 5.D.(7), which states employees are responsible for observing and abiding by all laws, rules, regulations and other authoritative policies and guidance.” In her affidavit, Complainant stated she was not counseled for the incidents on July 5, August 27, or September 4, 2016, and that she did not have a chance to respond to the notice of termination, but the AJ found that Complainant did not dispute that at least one or two of the listed incidents had occurred. As for similarly situated employees, the AJ found that the employees named by Complainant as having “access control issues” but who remained employed by the Agency “were not on her same shift and had different” supervisors. 2021002443 4 Even so, the AJ further found that one of the employees “had no corrective or disciplinary actions, another had been given a Letter of Counseling for unauthorized absences and tardiness, and [the] third had resigned,” and were therefore not similarly situated to Complainant. The AJ ultimately concluded that “the Agency has set forth non-discriminatory explanations for the matters underlying Complainant’s claims of discrimination,” that Complainant had not provided evidence to show these explanations were pretextual, and that a hearing was therefore unwarranted. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant includes a list of statements she claims were written by her former union representative (non-attorney) who represented her during the course of the EEO investigation. The union representative contends that S3 retaliates against union members when they bring up “weakness or bias within” the workplace; that CCM “bullies, harasses, discriminates, and intimidates” other Transportation Security Officers; and that, as Complainant’s representative, he “was denied access to the so-called evidence that [S3] said she used to make a final [termination] decision.” The union representative further states that the Agency’s training is “shaky” and that “it takes up to two years to get an officer to be really good at protecting the public.” ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when she or he 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 factfinder 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 implementing 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 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an AJ’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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 2021002443 5 For the reasons discussed below, we find that the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment Although the AJ analyzed all of Complainants claims under a disparate treatment framework, we find that Claims 1 and 3 are better analyzed under a hostile-work-environment analysis. These claims do not constitute discrete acts by the Agency because neither resulted in an adverse employment action against Complainant. As to Claims 2 and 4, we find that the AJ properly issued a decision without a hearing finding no discrimination. Assuming Complainant established a prima facie case of discrimination based on the discrete acts in Claims 2 and 4, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. The record shows that the Agency’s legitimate, nondiscriminatory reasons for issuing Complainant the LOC and the notice of termination were that, during her probationary period, Complainant had several instances of violating security protocol dating from July 2016 to September 2016. Complainant points to no specific evidence disputing these violations, and her affidavit contains only the conclusory statement that she “never had three access control” issues, though five total instances were listed on the notice of termination. We also find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in this matter.4 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant’s argument that her former union representative is willing to testify as to management’s “bias” is unavailing. Her union representative did not work at the airport, and Complainant makes no argument that he has direct knowledge of Complainant’s work performance that would be relevant to the material facts in this case. Other than the union representative’s bare assertion, there is also no evidence that he was denied access to any relevant documentation on which S3 relied in reaching the decision to terminate Complainant. The contention that the Agency’s training was subpar is also an unproven assertion not supported by the record. Even if true, however, it does not create a genuine dispute of material fact as to whether Complainant’s discipline was motivated by discriminatory animus. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor on Claims 2 and 4. 4 We note that, in addressing an AJ’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. Here, Complainant’s allegations that S3 and CCM are biased and that she was terminated because of her race, sex, or age are bare assertions without support in the record. 2021002443 6 Hostile Work Environment To establish a claim of harassment, a 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 her 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). Therefore, to prove her harassment claims, 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, sex, or age. Only if Complainant establishes both of those elements-hostility and motive-will the question of Agency liability present itself. Under the standards set forth in Harris v. Forklift Systems, Inc., Complainant’s claim of a hostile work environment must fail with regard to Claims 2 and 4. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that these actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). As to Claims 1 and 3, construing the evidence in the light most favorable to Complainant, we find that Complainant has not shown she was subjected to a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Claim 1, involving Complainant’s expired eQip form, constituted a routine email from CCM on which Complainant was copied, indicating that she needed to complete the forms for a background check. CCM’s email was sent a few days after Complainant received an email containing a pro forma notice to Complainant that failure to complete the forms could result in corrective action, including termination. Complainant’s race, sex, or age was not mentioned in these communications, nor was the language or tone of either email unprofessional. Claim 3 involved a single incident on one day where Complainant was yelled at by S2. The comments made by S2, make no reference to Complainant’s statutorily protected status, and S2 was immediately counseled by S1 on his conduct. Even assuming that the incidents occurred as alleged, we find Claims 1 and 3, taken together, do not rise to the level of severe or pervasive conduct to constitute a hostile work environment. Furthermore, we find that Complainant failed to show that the Agency’s actions were based on discriminatory animus. 2021002443 7 For these reasons, we find no basis to disturb the AJ’s summary judgment decision finding that Complainant was not subjected to discrimination as alleged. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including the parties’ arguments on appeal, we conclude that the AJ 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 fully implementing the AJ’s decision 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. 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). 2021002443 8 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. 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 December 2, 2021 Date
