U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stacie D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020000277 Hearing No. 480201800251X Agency No. HSTSA014342017 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from an August 14, 2019Final Agency Decision (“FAD”) concerning an 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 as a Transportation Security Officer ("TSO"), SV/1802-E-Band at the Agency’s Los Angeles International Airport ("LAX") facility in Los Angeles, California. On July 13, 2017, Complainant filed an EEO complaint alleging that she was subjected to a hostile work environment/harassment and discrimination by the Agency on the basis of sex (pregnancy) 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. 2020000277 2 1. From approximately March 7 to 20, 2017, her screening duties were removed. 2. On March 8, 2017, she was not allowed to complete her x-ray duties and was threatened with discipline by two (2) Supervisory TSOs, (“STSOs”). 3. On March 8, 2017, she was ordered to read the Standard Operating Procedures (“SOP”). 4. On an unspecified date, a Transportation Security Manager (“TSM”) denied her request to be moved to another terminal. 5. On or about March 27, 2017, she was told that removal of her x-ray screening duties was not discipline. 6. On April 28, 2017, she was scrutinized when she went to the bathroom by a Lead TSO (“LTSO”), who referred to her as “girl” and made a big deal of her request. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice her right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the AJ remanded the matter to the Agency for a FAD, which it issued pursuant to 29 C.F.R. § 1614.110(b). The record developed during the investigation includes the following relevant facts: As an E-Band level TSO, Complainant was expected to “retain and implement knowledge of all applicable SOP related to the position,” be alert at all times, and maintain “attention to detail,” including doublechecking the accuracy of information. E-Band level TSOs were assessed, in part, by their decisiveness, independent thinking, and ability to apply “appropriate situational options and approaches.” E-Band TSOs were also expected to operate security equipment, such as baggage x-ray technology, in accordance with the Agency’s Screening Checkpoint Standard Operating Procedures (“SOP”). For instance, according to the SOP, Chapter 11, Part 2(A), Sections (3)(b)- (c), screeners at a check point must instruct the individuals passing through screening to remove any electronic devices that are 12 x 14 inches or larger from their bags and place them in a separate bin for x-ray screening. The SOP do not require screeners to instruct individuals to remove electronic devices under 12 x 14 inches from their bags. Complainant reported to a Supervisory TSO (“STSO-1”) (male) as her first level supervisor, and a Transportation Security Manager (“TSM-1”) (male) as her second level supervisor. Complainant testifies that when the events described in her claims occurred, she had only spent a minimal amount of time with TSM-1, but characterized their relationship as “not great.” 2020000277 3 Throughout the relevant time frame, TSM-1, STSO-1 and another Supervisory TSO (“STSO-2”) (female) who reported to TSM-1, and who Complainant described as a “constant participant” in the harassment, were all aware of Complainant’s pregnancy. Complainant’s pregnancy was also common knowledge among her colleagues in Terminal 4 because she was starting to show, and because she frequently needed to request to “tap out” in order to use the restroom. According to Complainant, TSM-1 and STSO-2 both commented at different times about her use of FMLA leave for pregnancy-related appointments, indicating frustration with her increased use of leave. STSO-2 regularly complained to TSM-1 that Complainant was “leaning,” and TSM-1 would admonish Complainant, even after she explained that it was the only comfortable way to position herself while pregnant. Complainant alleges that when started requesting restroom breaks more frequently, she observed TSM-1, STSO-1 and STSO-2 watching her more closely than the other TSOs. She believed that LTSOs and other STSOs were also monitoring her whereabouts at TSM-1’s request, including the LTSO she reported to Management for harassing conduct related to her restroom breaks on April 28, 2017. Complainant describes feeling like she was “walking on egg-shells,” when she came to work. She was afraid to ask for time off, instead giving away her shifts rather than face scrutiny by management. She also became embarrassed and afraid to request restroom breaks. To use the restroom, Complainant had to ask the STSO or LTSO on duty to tap her out, and to do this, they had to locate another TSO to replace Complainant at her station while she went to the restroom. When her restroom breaks increased due to her pregnancy, Complainant alleged STSO-2, and various other Terminal 4 coworkers outside Complainant’s chain of command influenced by STSO-2, would scrutinize Complainant’s time on break and make an issue of each restroom request. One LTSO in particular (“LTSO-1”) (male), who witnesses confirm exhibited an “attitude” toward Complainant, allegedly timed her restroom breaks. Complainant notified management after an incident on April 28, 2017, where LTSO-1 disregarded her multiple requests before acting frustrated and referring to Complainant as “that girl” when he finally tapped her out. LTSO-1 was counseled and underwent remedial training as a result. On March 7, 2017, Complainant was assigned to operate the x-ray machine for Terminal 4, Lane 10. She became aware that TSM-1 and an LTSO were staring at her, making her uncomfortable as she worked. She alleged TSM-1 came over to Lane 10, and, standing by the x-ray machine, started assisting Complainant by instructing passengers on what items, such as laptops, to divest for additional screening. However, one of the passengers did not take any electronics out of her bag before she placed it on the belt of the x-ray machine. TSM-1 did not say anything to Complainant, but observed that a laptop in the passenger’s bag was clearly visible on the x-ray screen as it went through. Rather than stop the belt, in accordance with the SOP, and scan the laptop separately, Complainant allowed the passenger to proceed. According to TSM-1, Complainant violated SOP, so he immediately directed her to stop the belt, instructed ATSO-1 to screen the passenger’s bag, then tapped Complainant out to counsel her. He asked Complainant why she allowed the passenger to proceed without re-screening her laptop in a separate bin, a violation of SOP. 2020000277 4 Complainant recounts that he spoke to her in a condescending manner and told her she was “lucky he did not write her up” for the incident. TSM-1 rejected Complainant’s explanation that she did not violate SOP because the laptop, which she characterized as more of a notebook or tablet, was smaller than 12 x 14 inches. TSM-1 informed Complainant that he had been watching her “since yesterday” and he noticed that she did not stop the belt moving passenger belongings when she operated the x-ray. At TSM-1’s instruction, she met with him in the managers’ office, with STSO-1 and STSO-2 present. Complainant acknowledged that she did not stop the belt but explained that she kept it moving to prevent backup. Lane 10 was not assigned a bag checking person, so she had to monitor the belt and the passengers while she operated the x-ray machine. Having worked as a TSO at LAX for over seven (7) years, Complainant felt demeaned by TSM-1 particularly when he instructed her to read the SOP again, sarcastically asking if she knew how to do her job. After the meeting, Complainant reported TSM-1’s conduct to the Union. She also asked another TSM (“TSM-2”) (male) if she could be moved to another terminal based on this incident and the ongoing scrutiny and alleged harassment, On March 8, 2017, STSO-1 followed up with Complainant on TSM-1’s behalf, and in accordance with SOP by providing her with instructions for reading the SOP, taking remedial training, and viewing security footage of the incident. Neither STSO-1, nor STSO-2 recall threatening Complainant with discipline. Complainant’s hours were not impacted, as she could still do other screening duties that did not involve operating the x-ray machines. While this entailed more time on her feet, resulting in pregnancy-related discomfort, Complainant did not notify management or have a record of a medical restriction in her file. She returned to operating the x-ray machine on March 20, 2017, after completing the required training. On March 27, 2017, at the request of Complainant’s Union representative, a meeting was convened to discuss Complainant’s allegations that she was subjected to harassment and discrimination, and request to transfer to a different terminal, which she raised with a Lead Transportation Security Manager (“LTSM”) and the Deputy Assistant Federal Security Director, (“AFSD”).2 Complainant strenuously disagreed with LTSM’s handling of the matter, as it was explained that the training she was assigned after the March 7, 2017 laptop incident did not constitute a disciplinary action, and, as she was harassed, there was “no reason” to grant her request to move to a different Terminal. The AFSD acknowledged Complainant’s concerns about TSM-1 and others’ scrutiny of her work, then explained that he is was the one who suggested that managers and supervisors stand behind TSOs while they are operating the x-ray machine. He also asked Complainant if the harassment allegation could be attributed to “emotions,” informed her of her “defensive demeanor” and advised her “not to listen to gossip.” AFSD offered to sit with Complainant and TSM-1 to have a discussion to help them move past the March 7, 2017 laptop incident. 2 Although discriminatory harassment based on pregnancy was discussed, there was no reference to EEO action by Complainant at this meeting. 2020000277 5 The FAD concluded that Complainant failed to prove discrimination occurred as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, (“EEO MD-110”) at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment - Claims 1-4 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. Texas 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). With respect to Claims 1, 2, and 4, the Commission has held that incidents of harassment consisting of timely discrete actions can be reviewed as separate claims of disparate treatment. Conlin v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120055310 (Dec. 5, 2006), recon. den. EEOC Request No. 0520070658 (Feb. 6, 2008). 2020000277 6 For Claims 1, 2, and 3, the Agency’s legitimate nondiscriminatory reason for temporarily removing Complainant’s screening duties on the x-ray machine and ordering her to read the SOP, was that Complainant violated SOP while operating the x-ray machine. Additionally, she was “witnessed firsthand by her manager not following instructions.” Complainant concedes that she did not stop the belt when she viewed the passenger’s bag with the laptop as it passed through the x-ray, but argues that the Agency’s reason is pretextual because she did not violate Agency SOP, as the laptop was under 12 x 14 inches. Further, she alleges that TSM-1 “set her up for failure” because he encountered the passenger before Complainant had, so she reasonably assumed that he would have asked the passenger to divest the laptop had it been necessary for compliance with SOP. Complainant argues, without evidence, that TSM-1 instructed the passenger to leave her laptop in her bag as a “test.” It is undisputed that allowing a passenger to leave the screening area with a laptop that was not removed from her bag prior to screening would constitute a violation of SOP in the event that the laptop 12 x 14 inches or larger. STSO-1, who handled the laptop when he stopped the passenger for additional screening, testified that it was a “full size laptop” and that by letting the passenger go without screening it, Complainant violated SOP. STSO-1 stated that TSM-1 responded in a manner consistent with Agency policy by requiring Complainant to review the video footage of when the incident occurred, review the SOP for x-ray operations, and complete two thirty (30) minute rotations with an On-the-Job Training coach. Significantly, Complainant states multiple times in the record that STSO-1 was “not a direct or purposeful participant [in her discrimination complaint] other than carrying out his duties as a supervisor.” The Union official that attended the March 27, 2017 meeting also agreed with TSM-1’s perspective of the March 7, 2017 laptop incident, differing only with how he addressed the matter with Complainant. As for Claim 4, the Agency’s legitimate, nondiscriminatory reason for denying Complainant’s request to move to another terminal was operational need. As an employer, the Agency is entitled to make its own business judgments. Absent evidence of discriminatory animus toward complainant, the Commission will not second guess the agency's business judgment in these matters. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981) (Agencies have "broad discretion" to determine how best to manage their operations, and it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility), see also Wrenn v. Gould, 808 F.2d 493, 503 (6th Cir. 1987) (to make a determination of discrimination, one must look at the motivation of the decision maker as opposed to his business judgment). The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Complainant did not establish pretext because her arguments did not show that the Agency’s decision was unreasonable in terms of business judgment, which, in this case involves ensuring passenger safety and national security. See, e.g. Clinton M. v. Dep’t of the Army, EEOC Appeal No. 0120172520 (Jun. 14, 2018) (complainant was unable to establish pretext where the agency’s legitimate nondiscriminatory reason for transferring him involved operational needs and patient safety). 2020000277 7 Complainant’s arguments for Claim 4 criticize the way the Agency handled her transfer request, and assert that the Agency capable of transferring her, and do not address the reasonableness of the Agency’s business judgment. Complainant has not offered any alternate evidence of pretext. Harassment/Hostile Work Environment To prevail on her claim of discriminatory harassment, Complainant would have to prove, by a preponderance of the evidence, that because of her sex (pregnancy), she was subjected to conduct so severe or pervasive that a reasonable person in her position would have considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Only if Complainant establishes both elements, hostility and motive, will the question of Agency liability present itself. See Complainant v. Dep’t of Transportation, EEOC Appeal No. 0120131581 (July 18, 2014) citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). For the discrete acts alleged in Claims 1, 2, 3, and 4, Complainant did not show that the Agency’s legitimate nondiscriminatory reasons were pretext for discrimination, so we will not include these acts in this harassment analysis. As for the allegations that on March 7, 2017, TSM-1, “tested” her, and spoke in a manner that made her feel demeaned, and, on March 8, 2017, at TSM-1’s behest, STSO-1 and STSO-2 “threatened” her with discipline, it is well established that instructions and admonishments do not rise to the level of discriminatory harassment. See DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000). We previously found similar claims, while unpleasant, constitute “common workplace occurrences.” See Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (allegations that the complainant’s "work duties and time in and out of the office were closely monitored on a daily basis; and she was treated more harshly and unprofessionally by her supervisor than other employees" were "common workplace occurrences"), Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000) (A supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence”). The alleged harassing act in Claim 5, a comment that temporary removal from operating the x- ray machine was not discipline, also fails to describe harassment. The record supports the truthfulness of the statement, as Complainant did not receive a verbal or written warning, reprimand, or any other disciplinary action on her record as a result of the March 7, 2017 laptop incident. Additionally, the comment was in response to Complainant, during a private meeting with management officials who were already aware of the March 7, 2017 laptop incident. For Claim 6, we note that Title VII forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment," as opposed to offhand comments, or isolated incidents that are not "extremely serious." See Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 81 (1998). 2020000277 8 Although Complainant indicates that LTSO-1 was not the only perpetrator of harassment related to her need for frequent restroom breaks, the April 28, 2017, incident is the only specific incident that Complainant provided in her formal complaint. Given that Complainant was tapped out, this incident is not “extremely serious” as to constitute harassment. Moreover, the Agency took prompt and affective action when Complainant reported the incident. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120131065 (Jan. 24, 2014) (agency not liable for harassment when, two days after complainant notified it of harassment, it changed the harasser’s schedule, so his breaks did not coincide with those of the complainant, required him to take sexual harassment training, and wrote him up). Among other things, LTSO-1’s supervisor counseled him, and planned to brief all LTSOs on “due diligence in response to their officers' requests.” CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 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. 2020000277 9 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. 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. 2020000277 10 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 3, 2021 Date
