U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zelda T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020002233 Hearing Nos. 430-2016-00522X, 430-2017-00202X Agency Nos. HS-TSA-02597-2015 HS-TSA-25938-2016 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Behavior Detection Officer (BDO) at the Norfolk International Airport in Norfolk, Virginia On April 8, 2015, Complainant filed a formal complaint (HS-TSA-02597-2015) alleging that the Agency harassed her and discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity 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. 2020002233 2 1. On November 20, 2014, during a meeting with Complainant and a union representative, the BDO Manager allegedly told Complainant that she was harassing Complainant and that she has not seen the worst of it yet. 2. (a) On or about December 18, 2014, the BDO Manager allegedly told Complainant in the presence of a coworker that Complainant has not seen harassment yet. (b) The BDO Manager is alleged to have said that every time she is called on the carpet and questioned by her boss, it will be reflected in Complainant’s Transportation Security Officers Performance Standards (TOPS) scores. 3. On January 22, 2015, Complainant’s BDO Manager refused to sign Complainant’s sick leave request form. Complainant contends the BDO Manager immediately approves leave requests for males but when female BDOs request leave, the BDO Manager asks a lot of questions as to why the leave was needed. 4. Complainant was forced to call out sick on January 23, 2015, after the BDO Manager denied her sick leave request. Complainant asserts that call-outs reflect negatively on her attendance record. 5. On or about January 22, 2015, the BDO Manager badgered Complainant about calling out sick. On January 26, 2015, Complainant asserts that the BDO Manager told other Supervisory Transportation Security Officers not to sign Complainant’s leave request form. 6. On or about January 22, 2015, Management asked Complainant if her doctor was located at the hospital facility and Complainant alleges management comments were sarcastic and offensive. 7. On or about January 2015 the BDO Manager allegedly changed Complainant’s 2015 mid-year evaluation TOPS scores.2 8. Complainant alleges retaliation when the Assistant Federal Security Director (AFSD), along with the BDO Manager, on March 19, 2015, allegedly agreed to implement a policy that only allowed BDOs to work with partners of the opposite sex. On June 21, 2016, Complainant filed a second EEO complaint (HS-TSA-25938-2016) alleging that she was subjected to a hostile work environment and discrimination based on sex and in reprisal for protected EEO activity when: 2 Although the claim initially identified Complainant’s 2014 mid-year evaluation, the record reveals the 2015 mid-year evaluation was the one involved. 2020002233 3 9. On March 17, 2016, Complainant’s work duties and whereabouts were scrutinized by a BDO with whom she was assigned to work. 10. On April 1, 2016, a TSM followed Complainant to the restroom and searched under every stall until she located Complainant. 11. On April 4, 2016, Complainant was denied representation and threatened with removal for allegedly placing an irritant on a TSM’s telephone. After its investigation of the two complaints, the Agency provided Complainant with a copy of the two reports of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. In an Initial Conference with the AJ, the two cases were consolidated. The Agency filed a Motion for Summary Judgment. Complainant filed a response in opposition to the Agency’s Motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its notice of final order fully implementing the AJ’s finding that Complainant failed to prove discrimination as alleged. 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). 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. 2020002233 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final order fully implementing the AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2020002233 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 16, 2021 Date
