U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Remona P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2021003866 Hearing No. 520-2020-00299X Agency No. HS-TSA-02285-2019 DECISION On June 18, 2021, 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 May 18, 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. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) correctly determined that Complainant did not establish that she was discriminated against and subjected to harassment on the bases of age, race, and sex as alleged. 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. 2021003866 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Manager (TSM) at the Agency’s LaGuardia International Airport (LGA) in Queens, New York. In an effort to obtain feedback on TSMs’ job performance, Deputy Federal Security Director (DFSD) and Federal Security Director (FSD) conducted an anonymous survey of the Supervisory Transportation Security Officers (STSOs). STSOs reported to TSMs. (Report of Investigation [ROI], Tab F-3, pages [pp.] 76-77; Tab F-4, p. 89) DFSD and FSD then met individually with 22 employees, including the TSMs, to discuss the survey results. (ROI Tab F- 4, pp. 74-76, 90-91) Two STSOs had provided feedback about Complainant, which DFSD and FSD discussed during a meeting with Complainant. They also compared the survey results to Complainant’s 2018 performance rating. One STSO (STSO1) had commented that Complainant “takes officers imperfections as a personal attack to her and the mission.” Complainant interpreted the remark to mean she was “aloof”. (Exhibit [Ex.] F-6a and F-10; ROI, Tab F-1, pp. 7, 52-53; Tab F-3, p. 75; Tab F-4, p. 90.) Complainant stated that her meeting with DFSD and FSD focused on the “aloof” survey comment. In her affidavit, she stated that they “verbally berated her.” According to Complainant, DFSD stated that she was “average” and did not deserve the rating she had received the previous rating period. Complainant alleged that DFSD pointed his finger, screamed at her, pounded his hand on the table, and criticized her job performance. (ROI, Ex. F- 1; F-6a; Complaint File [CF], p. 13; ROI, Tab F-1, pp. 6, 33, 53.) Complainant asserted that she was “horrified, distraught and felt bullied.” She stated that she felt like she was being attacked and made to “feel small” and “low and unworthy.” (ROI, Ex. F-1; Tab F-1, p. 6) According to Complainant, she did not understand DFSD’s alleged behavior or why he had criticized her work performance. She did not interact with DFSD on a regular basis. While acknowledging that DFSD did not make comments related to her protected basis, she believed DFSD’s behavior was based on her race and sex because she was observably Black and female. Complainant also believed that her age could be a factor because STSO1 was younger than she was. She also believed that DFSD and FSD knew her age because they had access to employees’ personnel files. (ROI, Ex. F-1; CF, p. 17; ROI, Tab F-1, pp. 5, 7, 60-62) On October 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and age (59) (ROI, Tab C-2, p. 33) when on August 8, 2019, a manager screamed at her and criticized her work performance. 2021003866 3 The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. The parties participated in an initial conference. On September 25, 2020, the Agency filed a Motion for Summary Judgment (MSJ). Complainant filed a response. The AJ determined that there were no genuine issues of material fact in dispute, and that the Agency was entitled to summary judgment. In her decision, the AJ found that the Facts Statement in the Agency’s motion was accurate with the exception of paragraph numbers 8, 9, 10 and 15. The AJ did not accept the identified facts. She stated that those facts were inaccurate because they were “more reflective of the opinion of a particular witness(es).” The AJ found that Complainant’s complaint, comprised of one isolated incident did not rise to the level of an unlawful employment practice under either Title VII or the ADEA. Further, the AJ stated that there was no evidence in the record that the alleged harassment involved any of Complainant’s protected classes. The AJ observed that, even accepting that both DFSD and SFD knew Complainant’s age, race, and sex, there was no evidence to demonstrate that Complainant was treated differently than those outside her protected classes. The AJ noted that DFSD and SFD also held separate meetings with 21 other individuals, to address similar issues to those they had with Complainant. The AJ also observed that most TSMs were also criticized by DFSD regarding their work performance. The AJ granted the Agency’s motion for a decision without a hearing and issued a decision on February 28, 2021. The Agency subsequently issued a final order fully implementing the AJ’s decision that Complainant failed to prove that the Agency had subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant disputes six of the stated facts relied upon by the AJ, noting that the AJ herself found some of the facts in the Agency’s motion were more opinion rather than fact. She asserts that there were “clear factual discrepancies” that were not addressed. Complainant argues that these factual disputes are sufficient, as a matter of law, to deny summary judgment. She requests that the AJ’s Decision be reversed.2 In response, the Agency asserts that the AJ properly granted its motion because there was no evidence of discriminatory intent. According to the Agency, although Complainant alleged that management officials knew her age, her assertion was only based on her “unfounded assumption” that the officials had access to her employee file. 2 We note statements by Complainant and the Agency indicating that the AJ dismissed Complainant’s complaint. The AJ did not dismiss the complaint, but rather Complainant’s request for a hearing 2021003866 4 The Agency also reiterates that Complainant did not dispute that the responsible management officials made no comments about her protected bases, noting that, even in Complainant’s own words, there was no link between management’s alleged actions and Complainant’s protected classes. According to the Agency, Complainant’s arguments regarding inaccurate facts in the Agency’s motion are misplaced and do not establish judicial error. The Agency requests that the Commission affirm its Final Order. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 AJ’s Decision Without a Hearing We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2021003866 5 An AJ may issue a decision without a hearing 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 a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant indicates that “factual discrepancies” exist that were not addressed by the AJ. However, the “factual discrepancies” identified by Complainant involve facts that are either not in dispute or that are not material to the disposition in her case. (See MSJ numbers 3, 6, 8, 9, 14, and 15). We also do not find that Complainant’s statements that she had reported harassment to management were in dispute. The facts the AJ did not accept from the Agency involve opinions, expressed by management, that do not address whether Complainant was subjected to discrimination and harassment as alleged. (See MSJ numbers 8, 10, and 15). As such, summary judgment was appropriate in this case. Discrimination Based on Age, Race, and Sex A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, the Agency has articulated non-discriminatory explanations for the meeting that FSD and DFSD held with Complainant on August 8, 2019. Specifically, the meeting was held to discuss negative feedback that one of Complainant’s subordinates had provided to management. DFSD and FSD also discussed Complainant’s performance and how to improve on it. Similar meetings were also held with 21 other individuals. 2021003866 6 In an attempt to show pretext, Complainant stated that DFSD’s behavior must have been based on her protected classes because she is “observably” Black, and management was aware of her age due to its assumed access to her personnel files. However, these statements, essentially asserting that management was aware of her protected bases, are insufficient to meet Complainant’s burden to show the proffered legitimate reasons were unworthy of belief and pretext for unlawful discrimination. 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). Despite Complainant’s feelings about DFSD’s alleged behavior, she has described only routine work exchanges that do not constitute discriminatory harassment. See, e.g., Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018). Further, Complainant has not shown any connection between her protected bases and the alleged management actions. Therefore, her harassment claim fails. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s final order adopting it. 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. 2021003866 7 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. 2021003866 8 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: ___________________________M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 22, 2021 Date
