U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madelene A.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022002714 Hearing No. 410-2020-00456X Agency No. HS-TSA-02173-2019 DECISION On April 14, 2022, 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 March 17, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a Supervisory Transportation Security Officer (TSO) at Hartsfield-Jackson Atlanta International Airport in Atlanta, Georgia. On November 20, 2019, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the basis of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2022002714 2 1. From in or around January 2019 until the present, a management official verbally berated Complainant in multiple instances and touched Complainant in a threatening and unwanted way. 2. From February 17, 2019, to April 7, 2019, management did not select Complainant for the rotational position of Acting Manager. 3. From on or about February 22, 2019, to November 17, 2019, multiple management officials denied Complainant’s requests for overtime. 4. On or about March 9, 2019, management excluded Complainant from entering the manager’s office. 5. On or about April 28, 2019, management placed Complainant in a position where she directly interacted with the management official who had harassed her as alleged in claim 1 (above). 6. On or about May 21, 2019, management denied Complainant’s May 7, 2019, request for a shift change. 7. On or about May 22, 2019, management changed Complainant’s duty location. 8. On or about August 21, 2019, a management official denied Complainant’s request for overtime. 9. On or about September 18, 2019, Complainant was not selected for the position of Transportation Security Manager. 10. On or about December 13, 2019, a manager issued Complainant a pre-decisional disciplinary action. 11. On or about January 18, 2020, management issued Complainant a pre-decisional disciplinary action and posted the action on a public dashboard. 12. On or about February 6, 2020, management issued Complainant a Letter of Counseling. The Agency conducted an investigation into the complaint. Regarding Complainant’s retaliation claim, the investigation showed Complainant had previously filed an EEO complaint in 2017. According to the record, the individuals identified as the responsible management officials in Complainant’s 2017 EEO complaint were not involved in the instances of alleged discrimination in the instant EEO complaint. Report of Investigation (ROI) at 89. Complainant stated that, on or about January 8 and January 22, 2019, a Transportation Security Manager (TSM-1) verbally berated her about work-related matters while she was performing her duties as floor coordinator. ROI at 87-88. According to Complainant, TSM-1 explained that he was under pressure from management. Id. Complainant also alleged that, on or about February 5, 2019, TSM-1 again yelled at Complainant about a work-related matter and placed his hands on her arm to signal that she should not walk away. ROI at 89-90. According to Complainant, TSM- 1’s conduct was prompted by a TSO (TSO-1) giving TSM-1 “falsified information” about Complainant asking for a radio. ROI at 89. TSM-1 stated that he witnessed Complainant be very aggressive towards TSO-1 when TSO-1 handed Complainant a radio and that, when he intervened, Complainant raised her voice towards TSM-1 and made belittling statements. ROI at 177. According to TSM-1, his tone was loud because Complainant’s tone was loud, but he was not argumentative and did not yell. ROI at 177. 2022002714 3 Complainant stated that she tried to walk away from TSM-1 but was prevented by TSM-1 grabbing her arm and standing in front of her. ROI at 89-90. TSM-1 denied grabbing Complainant, but he stated he lightly touched her arm because she was trying to walk away while he was talking to her. ROI at 177. Complainant alleged that TSM-1 also made sexist remarks, including, “you’re a supervisor, act like it,” “this is girl stuff and he didn’t have time to deal with this,” and “listen to me, I’m talking to you.” ROI at 89-90. TSM-1 denied making the statements alleged, but he averred that he stated, “[y]ou’re a supervisor,” to remind Complainant to act appropriately towards TSO-1, and “[t]his is between y’all and I don’t have time to deal with this.” ROI at 177-78. In an unsigned statement, a former Supervisory TSO (“former STSO”) stated that she witnessed TSM-1 raise his voice and become aggressive towards Complainant. Complainant Response to Motion for Summary Judgment (CRMSJ) at Ex. 2. Complainant complained to management about the February 5 incident with TSM-1. ROI at 90- 91. According to the record, management reported the incident to the Anti-Harassment Program Office, appointed a fact-finder to investigate, separated Complainant and TSM-1 during the investigation, and removed TSM-1 as Complainant’s rating official. Agency Motion for Summary Judgment (AMSJ) at Ex. B. In a February 12, 2019, email to various management officials, Complainant stated that she had reviewed the CCTV footage from February 5 and determined that both she and TSM-1 could have handled the situation differently. Id. On April 23, 2019, the Duty Transportation Security Manager (DTSM-1) issued TSM-1 a Letter of Counseling for inappropriate comments and/or conduct, noting that CCTV footage showed TSM-1 touch Complainant’s arm. AMSJ at Ex. C. The record contains an April 24, 2019 memo from the Deputy Assistant Federal Security Director (DAFSD-1) to the Anti-Harassment Coordinator, which stated that the assigned fact-finder, a Transportation Security Investigator (TSI) determined that there was no evidence to support Complainant’s allegations that she was harassed by TSM-1. ROI at 972. DAFSD-1 stated in the memo that, although Complainant’s harassment allegations were unsupported, TSM-1 received the Letter of Counseling because he touched Complainant’s arm, which was inappropriate. ROI at 972. On April 24, 2019, DAFSD-1 notified Complainant that the investigation into the February 5 incident was complete and that appropriate action had been taken. AMSJ at Ex. D. Complainant complained to HR that she should not have to interact with TSM-1. ROI at 98-99. In response to Complainant contacting HR, DAFSD-1 informed Complainant that TSM-1 would continue to not be her rating official or assigned manager to provide her with instructions and that, given the size of the location where she and TSM-1 worked, with more than 100 TSOs working each shift managed by four TSMs, she would not need to interact directly with TSM-1. ROI at 227-28. Complainant averred that, from February 22, 2019, through November 17, 2019, various management officials denied her requests to work overtime. According to the record, from February 17, 2019, through November 17, 2019, 88 of Complainant’s overtime requests were approved, and 13 of her overtime requests were denied. Complainant’s overtime requests were denied when she was not able to work the entire shift, she had worked too many days in a row, her shift overlapped with the overtime shift, or the maximum number of Supervisory TSOs (STSO) had already been approved to work overtime. 2022002714 4 On May 3, 2019, Complainant was banned from working overtime for a pay period because she had been marked as a “no call no show” for an overtime shift on April 25, 2019, in accordance with the Agency’s Overtime and Procedure Guidance. ROI at 437-38. Although Complainant had informed the TSM (TSM-2) that she would not be able to work the scheduled overtime, TSM-2 marked Complainant as a “no call no show” for that day. On May 15, 2019, the overtime ban on Complainant was lifted after the miscommunication was cleared up. ROI at 440. According to the record, all three of Complainant’s May 2019 overtime requests were approved. AMSJ at Ex. E, F. Former STSO stated that Complainant’s overtime requests would be denied for reasons that were not applied to other STSOs. CRMSJ at Ex. 2. Complainant alleged that, from February through April 2019, she was denied the opportunity to serve as Acting TSM. ROI at 91-93. DTSM-1 denied that anyone was selected as Acting TSM during this time frame. ROI at 271. According to DTSM-1, some STSOs volunteered for a mentoring program and were paired with TSM-1 and another TSM (TSM-3) to shadow them and experience a day in the life as a TSM. Id. DTSM-1 stated that Complainant did not volunteer to participate in the mentoring program and that the mentoring program was open to all STSOs. ROI at 271-72. Complainant alleged that a DTSM (DTSM-2) excluded her from entering the manager’s office in March 2019. ROI at 96. According to DTSM-2, in March 2019, TSMs complained to him that the STSOs were using the manager’s office after the managers had left for the day. ROI at 211. DTSM-2 stated that the TSMs did not want the STSOs using the manager’s office and noted that the supervisors had their own offices. Id. DTSM-2 averred that, on or about March 6, 2019, he entered the manager’s office, saw Complainant, and asked her how she had gotten into the office. Id. DTSM-2 stated that he told Complainant that the managers did not want the supervisors using that office. ROI at 211-12. Complainant averred that she asked DTSM-2 if this was a new requirement or if she was being singled out, because she had not heard about it and other supervisors used the manager’s office as well. ROI at 96. Complainant stated that, on March 9, 2019, a sign was placed on the door of the manager’s office that said, “TSM AND ADMIN PERSONNEL ONLY NO EXCEPTIONS.” ROI at 96. DTSM-2 denied posting the sign. ROI at 212. Former STSO stated that, after DTSM-2 told Complainant that she could not be in the manager’s office, other STSOs continued to use the office, making it seem as though Complainant had been singled out. CRMSJ at Ex. 2. On May 7, 2019, Complainant sent an email to DTSM-1 requesting to change from her 5:45 a.m. to 2:15 p.m. shift to 4:15 a.m. to 12:45 p.m. ROI at 99. According to Complainant, on May 21, 2019, TSM-3 told her that DTSM-2 denied Complainant’s shift change request because of the allegations another STSO (STSO-1) made about Complainant. ROI at 100. DAFSD-1 stated that Complainant made her request one month after shifts had been adjusted to meet passenger demands and operational needs to allow Complainant better opportunities to work overtime. ROI at 228. According to DAFSD-1, Complainant’s request was denied because it was not aligned with operational needs. Id. Complainant alleged that three STSOs were allowed to change shifts when her request was denied. ROI at 101. 2022002714 5 In or around May 2022, Complainant requested to move to another passenger checkpoint based on the incident with STSO-1 and concerns with DTSM-2. ROI at 228-29; AMSJ at Ex. L. On June 11, 2019, DAFSD-1 emailed Complainant, offering to allow her to voluntarily move to a different checkpoint and making her aware that DTSM-2’s area of responsibility included all domestic checkpoints. ROI at 127. On June 12, 2019, Complainant responded to DAFSD-1’s email, asking to move to a different domestic checkpoint. ROI at 128. Complainant stated that she was aware that DTSM-2’s area of responsibility included all domestic operations but asked that DTSM-2 not be her reviewing official. Id. In July 2019, Complainant timely applied for a TSM position under vacancy announcement ATL-19-610435. ROI at 447-60. In August 2019, Complainant was one of 19 candidates interviewed for the vacancy. AMSJ at Ex. H. The selecting official was the Assistant Federal Security Director (AFSD-1), who asked for a list of the top 10 candidates based on a weighted combination of their performance evaluation scores and consensus interview scores. ROI at 295; AMSJ at Exs. G, H, I. Complainant was one of the top 10 candidates referred to the AFSD in an alphabetical list with no scoring information. AMSJ at Ex. I. The AFSD sought recommendations from the two DAFSDs as to which candidates should be selected from this list of the top 10 candidates. ROI at 295. Neither DAFSD recommended Complainant. AMSJ at Ex. J; ROI at 296-98. DAFSD-1 ranked Complainant eighth out of the candidates and stated that she needed to work on developing relationships with airport representatives, conflict resolution, and interpersonal skills, and the other DAFSD (DAFSD-2) stated he had not directly supervised Complainant and could not provide an assessment of her ability to perform as a TSM. AMSJ at Ex. J. On September 18, 2019, the AFSD selected three male candidates based on the recommendations of the DAFSDs. ROI at 295-98; AMSJ at Ex. K. Former STSO averred that Complainant was passed over for manager positions numerous times in favor of less qualified people. CRMSJ at Ex. 2. On November 27, 2019, Complainant worked overtime. AMSJ at Ex. E. TSM-2 stated that Complainant asked to go to the supervisor’s office to email her attorney about the results of an investigation and that he told Complainant that she could, as long as she was quick. ROI at 260. According to TSM-2, he told DTSM-2 that he had allowed Complainant to go send an email but that she had been in the office for approximately 15 to 20 minutes. Id. According to DTSM-2, because TSM-2 indicated that Complainant had been in the office for quite some time, he told TSM-2 to direct Complainant back to the floor. ROI at 216. TSM-2 stated that, when he entered the supervisor’s office and told Complainant to return to the floor, she did not respond. ROI at 260. TSM-2 averred that he repeated the instruction two or three times before Complainant responded that she would not return to the floor until the email was sent to her attorney. Id. DTSM-2 averred that, when TSM-2 reported that Complainant was refusing to follow his instructions, he told TSM-2 that he should address Complainant’s behavior. ROI at 216. On December 13, 2019, TSM-2 conducted a pre-decisional discussion with Complainant regarding her failure to follow his instructions to return to the floor on November 27, 2019. ROI at 259-60. According to Complainant, when conducting the pre-decisional discission, TSM-2 told her that DTSM-2 was the one pushing for disciplinary action regarding the incident. ROI at 107. 2022002714 6 TSM-2 stated that he conducted the pre-disciplinary discussion based on his misunderstanding of management’s directives. ROI at 260. According to TSM-2, no discipline resulted from this pre- decisional discussion. Id. According to the record, on December 13, 2019, while working at a passenger screening checkpoint, Complainant pulled the jacket off the shoulder of a TSO (TSO-2), pointed to the TSO-2’s shoulder boards and asked, “how many stripes do you have?”, and then pointed to her own and asked, “how many do I have?” ROI at 759-60. TSO-2 reported the incident to management as a workplace violence allegation, and the AFSD (AFSD-2) conducted an investigation. ROI at 772-73. After reviewing video footage, AFSD-2 determined that the incident occurred as alleged by TSO-2 and that, no matter her intention, Complainant’s actions and comments were inappropriate when addressing a subordinate officer and should be addressed by management based on the table of penalties. ROI at 758-61. On January 18, 2020, DTSM-1 and a TSM (TSM-4) conducted a pre-decisional discussion with Complainant regarding the December 13, 2019, advising her that, for inappropriate conduct, the range of potential disciplinary action from a Letter of Counseling to a 14-Day Suspension and providing her an opportunity to respond. ROI at 276-77, 750-51. DTSM-1 denied that the pre- decisional disciplinary paperwork was posted to a public disciplinary dashboard. ROI at 277. On February 17, 2020, TSM-4 issued Complainant a non-disciplinary Letter of Counseling dated February 6, 2020, for her inappropriate conduct towards TSO-1. ROI at 265, 775-78. 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. The Agency filed a motion for summary judgment, and Complainant timely filed a response opposing the Agency’s motion for summary judgment. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency subsequently 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. CONTENTIONS ON APPEAL On appeal, Complainant contends summary judgment was improper because there are genuine issues of material fact. According to Complainant, she can establish a nexus between the alleged harassment and her membership in protected classes. Complainant argues that the AJ improperly determined that, even taking all of Complainant’s allegations as true, they were insufficiently severe or pervasive to constitute a hostile work environment. Complainant asserts that the AJ improperly labeled Complainant’s allegations as general workplace grievances and disagreements with managerial decisions, as Complainant endured verbal and physical harassment from TSM-1 as well as discriminatory acts that affected her work performance and career growth. 2022002714 7 Complainant challenges the AJ’s determination that the Agency articulated legitimate, nondiscriminatory reasons for its actions and contends that the AJ failed to consider evidence showing that the Agency’s claimed reasons were pretextual. According to Complainant, the record establishes a pattern and/or practice of discrimination by management to undermine Complainant’s career progression. Complainant requests that the matter be remanded for a hearing. In response to Complainant’s appeal, the Agency contends that its final order should be affirmed. ANALYSIS AND FINDINGS 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 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 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 fact-finder could not find in Complainant’s favor. Disparate Treatment 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). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 2022002714 8 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency provided a legitimate, nondiscriminatory reason for not selecting Complainant for an Acting Manager shadowing rotation from February 17 to April 7, 2019, which is that she did not express interest in the voluntary mentoring program. Although Complainant states that she clearly expressed her interest in advancing to a leadership position, she does not state that she volunteered for the mentoring program. Complainant challenges the Agency’s legitimate, nondiscriminatory reason, asserting that DTSM-1 and DTSM-2 selected additional STSOs to serve as Acting TSMs in addition to the two mentioned as participating in the mentoring program. However, even assuming this to be true for the purposes of summary judgment, this is not material because DTSM-1 and DTSM-2 were unaware of Complainant’s prior protected activity, by Complainant’s admission, both male and females were selected as Acting TSMs. ROI at 92, 205, 270. The Agency provided legitimate, nondiscriminatory reasons for denying Complainant’s requests for overtime. Complainant’s March 28, 2019, November 15, 2019, and two of her three November 17, 2019, requests were denied for too much overlap between shifts. AMSJ at Ex. F. Complainant’s third request for November 17, 2019, was denied because she could not work for more than six days in a row. Id. Complainant’s April 18, 2019, request was denied because she could not work the whole shift. Id. Complainant’s August 3, 2019, request was denied because the maximum number of STSOs had already been approved for overtime. Id. Complainant’s three requests for August 22, 2019, were denied because she was picking up overlapping shifts. Id. Complainant’s two requests for overtime on August 23, 2019, were denied with the notation, “Banned from OT per [DTSM-1].” Id. The record reflects that, for August 23, 2019, seven other requests were denied with the same notation, “Banned from OT per [DTSM-1].” ROI at 780-81. According to DTSM-1, he attended a meeting around this time where Complainant stated that she was being disapproved for overtime for not following overtime guidance and that, because she would be in a hurry to sign up for overtime, she would tap the button multiple times, taking several slots. ROI at 276. Complainant’s September 28, 2019, request was denied because Complainant was unable to work the shift. AMSJ at Ex. F. The record reflects that Complainant was subsequently approved for overtime on March 28, 2019, September 28, 2019, and November 15, 2019. AMSJ at Ex. E. Although Complainant generally alleges that the overtime policies were not consistently applied, we find this is insufficient to establish a genuine issue of material fact concerning pretext. The Agency provided a legitimate, nondiscriminatory reason for asking Complainant not to use the manager’s office. Managers had complained to DTSM-2 that supervisors were using the manager’s office when there were no TSMs present. The record reflects that supervisors had their own offices to use. 2022002714 9 Although Complainant alleged that she was singled out, she has not established that DTSM-2’s legitimate, nondiscriminatory reason was a pretext for discrimination and/or retaliation. The Agency’s legitimate, nondiscriminatory reason for denying Complainant’s request to change her shift was that there was no operational need for the change. As evidence of pretext, Complainant alleged that others were allowed to change their shift around the same time. However, according to the record, Complainant made the request shortly after management adjusted shifts to meet passenger demands and operational needs. Complainant has not established a genuine issue of material fact, nor has she established that the Agency’s legitimate, nondiscriminatory explanation was pretextual. The Agency has proffered a legitimate, nondiscriminatory reason for changing Complainant’s duty location, which is that Complainant requested to move to a different checkpoint after she had an incident with another STSO and also expressed that she did not like working with DTSM- 2. In her email accepting the change to a different domestic checkpoint, Complainant acknowledged that DTSM-2 was responsible for all domestic checkpoints but did not ask to move to international operations. Although Complainant alleged that she was moved to a less favorable location, she has not identified a genuine issue of material fact that could establish that the Agency’s legitimate, nondiscriminatory reason was pretextual. The Agency provided a legitimate, nondiscriminatory explanation for not selecting Complainant for one of the vacant TSM positions. After the interviews, the top 10 candidates based on performance evaluation scores and consensus interview scores were referred to the selecting official, AFSD-1. Complainant was one of the 10 names on the list. AFSD-1 then asked for recommendations from the DAFSDs, and neither DAFSD-1 nor DAFSD-2 recommended Complainant for a TSM position. AFSD-1 selected the candidates recommended by the DAFSDs for the vacant TSM positions. Complainant challenges the wisdom of basing the selection on recommendations rather than based on the applicants’ relative qualifications or scores. Regarding personnel actions by an agency, we have consistently recognized that an agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed, as here, by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Moreover, mere assertions or suppositions by Complainant are not enough to establish pretext. Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016, (Dec. 11, 2003). Neither is it enough for Complainant to simply disagree with the Agency’s actions. Harris v. Dep’t of the Army, EEOC Appeal No. 01940486 (Sept. 6, 1994), request to reconsider denied, EEOC Request No. 05950046 (Mar. 21, 1996). We have consistently stated that pretext analysis is not concerned with whether the Agency's action was unfair or erroneous but whether it was motivated by discriminatory animus. Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). Here, Complainant has not established a genuine issue of material fact or shown that the Agency’s legitimate, nondiscriminatory reason was pretextual. 2022002714 10 The Agency’s legitimate, nondiscriminatory reason for conducting a pre-decisional disciplinary discussion on December 13, 2019, was Complainant’s failure to comply with TSM-2’s directions to return to the floor while working overtime on November 27, 2019. As evidence of pretext, Complainant alleges that TSM-2 told her during the pre-decisional disciplinary discussion that DTSM-2 was pushing for discipline against Complainant. TSM-2 stated that he conducted the pre-decisional disciplinary discussion based on a mistake. A mistake made by an agency is not evidence of pretext unless there is evidence that the mistake was based on a complainant’s protected classes. See Vickey S. v. Dep’t of Defense, EEOC Appeal No. 0120112893 (Nov. 17, 2015); Hsieh v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120120980 (June 4, 2012); Carroll v. Dep’t of Justice, EEOC Appeal No. 01A20985 (Jan. 21, 2003). Here, Complainant has not established that TSM-2’s mistake in conducting the pre-decisional disciplinary discussion was based on her membership in any protected class, nor has she otherwise established a genuine issue of material fact concerning pretext. The Agency provided legitimate, nondiscriminatory reasons for conducting a pre-decisional disciplinary action on January 18, 2020, and for issuing a Letter of Counseling on February 6, 2020. Specifically, video evidence showed that, on December 13, 2019, Complainant pulled TSO-2’s jacket off her shoulder, pointed to TSO-2’s shoulder boards and asked how many stripes she had, and then pointed to her own shoulder boards and asked how many stripes she had. TSO-2 reported the incident as workplace violence. Although Complainant alleged that she was joking around with TSO-2 and that conducting a pre-decisional disciplinary discussion and issuing a Letter of Counseling was excessive and unwarranted, we find that she has not established a genuine issue of material fact. Even assuming that Complainant’s intention was jovial, her actions and comments towards TSO-2 were inappropriate for addressing a subordinate officer. There is no evidence in the record that any documents related to Complainant’s pre- decisional disciplinary discussion were posted to a public dashboard as alleged by Complainant. Complainant has not established that the Agency’s real reason for conducting the pre-decisional discussion and issuing the Letter of Counseling was discrimination rather than her inappropriate conduct towards TSO-2. 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 the 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). 2022002714 11 Having addressed Complainant’s disparate treatment claims earlier in this decision, her remaining allegations are that she was subjected to harassment based on sex by TSM-1 in January and February 2019, and when she was forced to interact with TSM-1 in the workplace starting on April 28, 2019. Complainant alleged that TSM-1 made sexist remarks, including “this is girl stuff and he didn’t have time to deal with this.” ROI at 89-90. TSM-1 denied making sexist comments as alleged by Complainant, and former STSO did not describe TSM-1 making any comments connecting the alleged harassment to Complainant’s sex and/or prior protected activity. CRMSJ at Ex. 2. In response to the Agency’s motion for summary judgment, Complainant stated that it was undisputed that, on or about January 8 and January 22, 2019, TSM-1 verbally berated Complainant about work-related matters and that, “[o]n or about February 5, 2019, [TSM-1] yelled at Complainant again about a work related matter, this time placing his hands on her arm to indicate that she should not attempt to walk away and blocking her from walking off.” CRMSJ at Ex. 1. The Commission has held under similar circumstances that minor physical contact may be found to be insufficiently severe or pervasive to alter the terms or conditions of employment. See Azucena A. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120181293 (July 9, 2019); Dallas D. v. Dep’t of Education, EEOC Appeal No. 0120141371 (July 21, 2016). Under the specific circumstances presented here, we find that the alleged harassment is insufficiently severe or pervasive to constitute a hostile work environment. When Complainant reported the February 5, 2019 incident to management, management promptly reported the incident to the Anti-Harassment Program Office, appointed a fact-finder to investigate, separated Complainant and TSM-1, and removed TSM-1 as Complainant’s rating official. On April 23, 2019, the Agency issued TSM-1 a Letter of Counseling for his conduct towards Complainant, and, on April 24, 2019, Complainant was notified that the investigation into her allegation harassment was complete and appropriate administrative action had been taken. Although Complainant objected to TSM-1 returning to a work area where she might have to interact with him, TSM-1 was no longer her assigned manager or her rating official. Moreover, the record reflects that Complainant and TSM-1 were assigned to a large area with more than 100 TSOs per shift managed by four different TSMs. Complainant also did not allege any additional instances of harassment by TSM-1 occurred after February 5, 2019. In sum, we conclude Complainant has not established that she was subjected to harassment sufficient to violate Title VII. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or unlawfully retaliated against by the Agency as alleged. 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 order. 2022002714 12 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). 2022002714 13 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 28, 2023 Date
