[Redacted], Peggie T., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Geological Survey), Agency.

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2020001880 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexandra L.,1 Complainant, v. Alejandro N. Mayorkas Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020000360 Hearing No. 530-2018-00283X Agency No. HS-TSA-00484-2018 DECISION On September 20, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final action. 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer, SV-1802-E, at the University Park Airport in State College, Pennsylvania. 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. 2 EEOC Regulations state that an Administrative Judge’s (AJ’s) decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. § 1614.110(i). The AJ issued her summary judgment decision on August 21, 2019, and there is no indication in the record before us that the Agency issued a final order. As such, the AJ’s decision became the Agency’s final action on October 1, 2019. While we note that Complainant’s September 20, 2019 appeal was initially premature, the Commission finds that the appeal is now ripe for adjudication. 2020000360 2 On January 22, 2018, Complainant filed an EEO complaint wherein she claimed that the Agency subjected her to discrimination and a hostile work environment on the basis of race (association with her African-American husband) when: 1. On October 18, 2017, Complainant’s coworker stated, “You know what they call the Brazil nuts? Don’t you? N….r toes”, and she then chuckled; and 2. In October 2017, management failed to respond to Complainant’s report of the incident. 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 AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a summary judgment decision on August 21, 2019. On October 18, 2017, Complainant stated that a coworker asked her if she knew what they called “Brazil nuts” and then stated that they are called “N….r toes.” Complainant claimed that the coworker then told her to ask her husband because he would know what she was talking about. Complainant said that she did not respond at first because she was shocked that the coworker said this to her because the coworker had met her husband in the past. Complainant stated that she told the coworker that she did not think her comment was funny. On October 30, 2017, Complainant emailed her Supervisor and the Assistant Federal Security Director Generalist (AFSDG) concerning the incident. On November 6, 2019, the AFSDG spoke with the Agency’s Ombudsman Specialist about the matter. In response to Complainant’s November 7, 2017 email, Complainant’s Supervisor told Complainant that the AFDSG would be coming to the airport the following week and would address the matter with her. On November 28, 2017, Complainant, having not heard from the AFSDG, emailed him and her Supervisor to follow up. The AFSDG responded that day that he would meet with Complainant and the alleged harasser on November 29, 2017, to discuss the incident. Complainant replied that she preferred a separate meeting with the AFSDG, and Complainant and the AFSDG met on November 29, 2017. On November 30, 2017, the AFSDG issued the alleged harasser verbal counseling for making inappropriate comments toward Complainant. According to the AFSDG, he issued a verbal counseling because the alleged harasser appeared remorseful for her remarks. Complainant acknowledged that the alleged harasser twice attempted to apologize to her. In the AJ’s decision, the AJ found that Complainant’s coworker’s racially offensive joke was sufficiently severe to establish a hostile work environment. The AJ noted that Complainant acknowledged that after management addressed the issue with the coworker, the coworker no longer shared any racially offensive jokes. However, Complainant stated that the harasser continued to use vulgar and disgusting language, made immature gestures, disrupted her concentration, monitored her restroom breaks, and violated her workspace by standing close to her. 2020000360 3 Further, Complainant argued that the Agency failed to take effective action because it failed to notify her of the discipline issued against the coworker, and that any discipline that may have been issued was not harsh enough because the co-worker was not transferred and/or terminated. The AJ found that upon being informed of this matter, the Agency took immediate and appropriate corrective action to end the harassment. The AJ pointed out that Complainant mentioned that after Agency management met with the alleged harasser, the coworker ceased telling racially charged jokes to her. The AJ observed that the Agency was not obligated to take the specific actions requested by Complainant. The AJ stated that although Complainant established that she was subjected to discriminatory harassment because of the racially offensive joke, the additional issues and allegations described by Complainant were not race-based or due to Complainant’s race association. As a result, the AJ found there was no basis to impute liability on the Agency. The instant appeal followed. 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). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 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. 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 2020000360 4 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 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 the alleged basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The record reflects that Complainant, Caucasian, stated that she has an African-American husband and she found her coworker’s joke hurtful and offensive. Complainant belonged to a statutorily protected class and she clearly was subjected to harassment in the form of unwelcome verbal conduct that involved and was based on her race association with her husband. The nature of the remark was of such magnitude that it created an intimidating, hostile, or offensive work environment for Complainant. In the case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew, or should have known of the conduct, unless it can be shown that it took immediate and corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Appropriate corrective action is a response that is reasonably calculated to stop the harassment. We find that the Agency took reasonably prompt and remedial action to address the coworker’s behavior. We do note that there was a slight delay between Complainant’s report of the incident and management’s response. However, in that timeframe, the matter was communicated up to upper management for further action. AFSDG spoke to Complainant on November 28, 2017, and met with her the following day. On November 30, 2017, the AFSDG issued the coworker a verbal counseling. Complainant did not allege that any additional offensive discriminatory conduct occurred. Complainant argues on appeal that the coworker should have received additional discipline. The AFSDG stated that the coworker appeared sincerely remorseful for her remarks and believed that the matter was resolved. We are mindful of Complainant’s contention that the coworker has engaged in conduct since the relevant incident which Complainant finds distasteful. However, there has been no persuasive evidence presented that the coworker’s conduct since the relevant incident was similar to the previous offensive incident or otherwise based on Complainant’s association with her African-American husband. Accordingly, the Commission finds that there is no basis for liability. 2020000360 5 CONCLUSION The Agency’s final action is AFFIRMED. 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). 2020000360 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 February 25, 2021 Date