0120131249
06-07-2013
Sarjit Kaur, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Sarjit Kaur,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120131249
Agency No. HS-TSA-22189-2012
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 11, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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
During the period at issue, Complainant worked as a Part-Time Transportation Security Officer (TSO) at the Pittsburgh International Airport from February 27, 2012 to March 23, 2012.
On May 14, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the basis of religion (Sikh) when:
1. in October 2011, after she completed her background investigation and medical check for a TSO position, a Human Resources Specialist informed her that she did not complete her paperwork in time to be hired;
2. in February 2012, after advising her to report to orientation, another Human Resources Specialist told Complainant that she did not think she could be ready in time because Complainant's Form e-86 Questionnaire for National Security Positions was not updated;
3. on February 28, 2012, the Expert Security Instructor locked her out of training when she arrived late, and yelled at Complainant in the presence of other new trainees;
4. on March 9, 2012, the Security Training Instructor yelled at Complainant in the presence of other new trainees for asking a question about pat-down procedures; and
5. on March 23, 2012, as a result of the On-the-Job Training Monitor's mistreatment of her, Complainant was forced to resign from her TSO position.
The record reflects that applicants for the TSO positions are required to complete Form e-86 within 21 calendar days of completion of their pre-employment Airport Assessment. The record further reflects that instructions on the form recommended that the initial submission of the form be completed no later than 7 calendar days after completion of the Airport Assessments. The record reflects that applicants were permitted to submit multiple, corrected forms; however, an applicant would be considered an "involuntary withdrawal," ineligible for consideration for a TSO position for 6 months if the applicant's form submitted on the 21st day contained errors.
Further, the record reflects that on February 24, 2012, Complainant received an email from the Help Desk at the Agency's Human Resources Access website notifying her of the requirements of updating her Form e-86, including all required signatures, no later than her seventh day of agency employment. On February 26, 2012, Complainant sent an email to Help Desk explaining that the Form e-86 she had previously submitted was not signed because she did not have electronic signature capability.
In March 2012, Complainant underwent classroom training conducted by the Expert Security Instructor and the Security Training Instructor, and on-the-job training monitored by the On-the-Job Training Monitor. The record reflects that on March 23, 2012, Complainant submitted a written statement that she was resigning because of criticism and humiliation by the On-the -Job Training Monitor.
After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on December 11, 2012, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the basis of religion. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on religion. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that responsible Agency management officials articulated legitimate, nondiscriminatory reasons for the disputed actions in their statements taken during the investigation. Regarding claim 1, the Agency noted that Complainant did not provide any evidence indicating that any Human Resources Specialist told her that she did not complete her paperwork in time to be hired in October 2011. The Agency further noted when the EEO investigator asked Complainant to identify a Human Resources Specialist, Complainant stated "it was the people who sent me for medical and background who said this, I don't know the names."
The Human Resource Specialist (Specialist) stated during the relevant period, she was one of Complainant's instructors for the new hire training. The Specialist stated she had no knowledge of the October 2011 incident.
Regarding claim 2, the Transportation Security Officer stated that during the relevant time, she was designated as Complainant's On-The-Job Training (OJT) monitor (OJT monitor). The OJT monitor stated that while she has no knowledge of the October 2011 incident, two or three days before Complainant resigned from Agency employment "Complainant was trying to convince me to allow her to take her test (despite the fact that she was not ready because she could not see images on the x-ray so that she could complete OJT before she had to return to her work for her another employer. In this context, she mentioned wanting to transfer to Buffalo or Newark, but her paperwork was not completed in time...My only response was that until she could demonstrate that she knew what she was looking at and could spot threat images on the x-ray, she was not properly trained and ready to take the test."
Regarding claim 3, the Expert Security Instructor stated that Complainant "was frequently tardy to class in the morning as well as coming back from breaks. As to the [February 28, 2012 incident], I have no particular recollection. I did not yell at her nor have I ever yelled at any student in my career. I did inform Complainant about her tardiness. This was done off to the side. This was not done in front of the class. Once class starts, we close the doors, this is done to preserve the learning environment for the students who are on time. It is very disruptive when a late student comes in after a lecture has begun."
Regarding claim 4, the Specialist denied yelling at Complainant in the presence of other new trainees. Specifically, the Specialist stated "I never yelled at Complainant. I never grabbed the SOP and told her I did not think this job was for her. Her allegation that I humiliated her in front of passengers at the airport is false; during the new hire training we travel to the airport and work at an inactive lane that is located quite a distance from any active lanes with passengers. In new hire training before the OJT process, we have never work directly with passengers in active lanes. On top of the fact that I never said or did what Complainant alleges, logistically, as just described, her allegation here is impossible."
Regarding claim 5, the OJT monitor stated "I never put Complainant down or criticized her during my time as her OJT monitor. As OJT monitor, I am watching her perform her job in real time, on real passengers, the security of people and places is at stake. Violations of the security SOP need to be corrected on the spot in real time; by necessity this means corrections will occur in front of passengers. This is not a game. Likewise, I praised and complimented Complainant in real time as well; by necessity this occurred in front of passengers as well. I never made the statement, 'at the rate she's going. I don't know when she is going to be complete.' Complainant did ask for a new OJT monitor. I did discuss the difficulties Complainant was experience with [a named Transportation Security Officer]. I explained that she did some things well but other things not very well at all; this conversation followed my March 22, 2012 e-mail regarding Complainant's performance. The decision to keep me as the OJT monitor was based on Complainant's continual demand that she had to be done by the end of the second week because she had to go back to her other job; Complainant had taken leave of her other job so she could attend TSA training."
Further, the OJT monitor stated that if management had switched OJT monitors, Complainant would not have been able to complete her training. The OJT stated "my goal was to get [Complainant] done in time so she could go back to work at her other job. I never made the statement that, '[Complainant] was stuck with [me] whether [she] liked it or not.' Our training is conducted as a group in order to maximize the learning impact and to best replicate what actually happens at a busy checkpoint. Corrections and compliments, are given on the spot and in front of the entire group; everyone learns from each other's mistakes as well as their successes."
The record contains a copy of the OJT monitor's email dated March 22, 2012 to the Director of Officer Training and Performance Assessment (Director) concerning Complainant's performance. Therein, the OJT monitor stated that Complainant "becomes distracted when she is on the floor. If something happens somewhere else, ... she has a tendency to turn away from what she is doing (such as walking away from WTMD to see what is going on) or paying attention to X-ray she wants to watch the physical bag checker). " The OJT monitor stated that Complainant had difficulties looking for security concerns on the x-ray and "I have tried having several other people work with her. I have sent her to do TRX almost everyday, but at this point I am completely frustrated. [Complainant] just doesn't recognize anything that she sees. If I have her do a Physical Bag Check, she cannot identify where the items is in the bag."
The OJT monitor also stated that when she was going over her OJT book with Complainant, Complainant "sat there and kept nodding off. When I tried to discuss the OJT book with her, she interrupts asking questions about how far the other trainees are progressing."
With respect to Complainant's allegation that she was forced to resign, OJT monitor denied it. Specifically, the OJT monitor stated that on Complainant's last day, she and Complainant worked together and "we both went on break. I fully expected to see Complainant when we returned. When I returned from break, I was informed by [Director] that Complainant had resigned."
The Director stated that on March 23, 2012, Complainant "came to me and told me she was resigning. I listened to the complainant explain why she was resigning. She never stated she was being forced to resign. I asked her if she was sure this is what she wanted to do and she replied 'yes.' I did not have a smile on my face while listening to her concerns and accepting her resignation."
Further, the Director stated that he was aware that Complainant had difficulties meeting standards on the x-ray and had disagreements with the OJT monitor concerning her training. The Director stated he had a discussion with the OJT monitor "to follow up on Complainants progress. [OJT monitor] indicated that she had discussed the challenges with Complainant and that they had reached an understanding of what the training process entails."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, for the same reasons already articulated above, we conclude that the evidence does not establish that the incidents alleged by Complainant occurred because of her religion.
Constructive Discharge
Constructive discharge occurs when an employee resigns from his or her employment because he or she is being subjected to unlawful employment practices. If the resignation is directly related to the Agency's unlawful employment practices, it is foreseeable consequence of those practices and constitutes a constructive discharge. The Agency is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a complainant. To establish that he was constructively discharged from his position, Complainant must show (1) that his resignation resulted from the Agency's actions, (2) that the Agency's actions were discriminatory, and (3) that a reasonable person in his situation would have found the Agency's actions intolerable. See Malpass v. Department of Veterans Affairs, EEOC Request No. 05920527 (July 20, 1992). Therefore, to establish that she was constructively discharged, Complainant must first show that the Agency's actions were discriminatory.
We concur with the Agency and find that substantial evidence supports that Complainant has not shown that Agency management engaged in discriminatory actions which became so intolerable that she had no choice by to resign. As discussed above, the Agency established legitimate, nondiscriminatory reasons for its actions. Specifically, we note that the record reflects that management had concerns about Complainant's performance during training and tardiness to training. Moreover, there is no evidence that the Agency's actions were motivated by discriminatory animus. Accordingly, we find that Complainant has not established that she was constructively discharged.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 7, 2013
__________________
Date
2
0120131249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131249
9
0120131249