Shanta S.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Oct 20, 2016

0120141063 (E.E.O.C. Oct. 20, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shanta S.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120141063

Hearing No. 520-2011-00212X

Agency No. HS-TSA-00706-2010

DECISION

Complainant filed an appeal from the Agency’s final order dated December 11, 2013, finding
no discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, dated June 7, 2010, Complainant alleged discrimination based on sex
(female) when on December 9, 2009, she received a 5-day suspension. Upon completion of
the investigation of the complaint, Complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). On November 8, 2013, the
AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final
order implemented the AJ’s decision.

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.
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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident. During the relevant time period at issue, Complainant was
employed as a Federal Air Marshall (FAM), SV-1801-1, at the Agency’s New York Field
Office, East Elmhurst, New York.

The record indicates that on January 29, 2009, Complainant and her FAM partner were on
duty at John F. Kennedy International Airport en route to Delta first class. The Agency
indicated that under its policy, all FAMs were required to display their Sterile Identification
Display Area (SIDA) badges when going through airport security and to avoid public security
screening checkpoints whenever possible. On January 29, 2009, Complainant did not have her
SIDA badge; her FAM partner had his SIDA badge.

Complainant claimed that on January 29, 2009, she, not having her SIDA badge in her
possession, presented her FAM credentials and her government issued second form of
identification to a guard to go through the exit lanes thereby bypassing the security checkpoint.
Complainant stated that the guard insisted she go through the screening checkpoints.
Complainant then asked to speak to a Security Manager and she told the Security Manager that
she was armed and had credentials and going through public security screening checkpoints
would jeopardize her identity. The Security Manager would not allow her to go through the
exit lanes and asked her to go through the screening checkpoints. Complainant stated that she
immediately then called her on-duty ATSAC (Assistant to the Special Agent in Charge) and the
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on-duty ATSAC then notified an Agency Inspector who came to the scene and escorted her and
her partner through the exit lanes and they were able to complete their assigned mission.

Complainant’s supervisor indicated that the Security Manager complained to him that on
January 29, 2009, Complainant was rude and unprofessional and attempted to bypass screening
without her SIDA badge in her possession. The Security Manager stated that Complainant
asked him if he knew what an “A” Pouch2 was and when he said yes, she became very irate.
The Security Manager stated that when Complainant’s partner tried to show him his ID,
Complainant stopped him from doing so. The Security Manager stated that when he asked for
her name, she refused to give him her name. The Security Manager indicated that
Complainant never showed him her credentials at any time.

Upon receipt of the Security Manager’s complaint, stated the supervisor, his office investigated
the incident and pending the investigation, Complainant was placed on administrative duty
under Agency policy. Based on the investigation of the incident at issue, the supervisor
indicated that considering Complainant’s four years of service as a FAM and her prior Letter
of Reprimand on June 9, 2008, for a missed mission, he issued her a proposed 5-day
suspension on December 9, 2009, and ultimately issued her the 5-day suspension at issue due
to her unprofessional conduct. The supervisor stated that Complainant’s partner was not
disciplined because he did not exhibit unprofessional conduct on the date at issue.

Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for her suspension at issue. After a review of the record, we find
that Complainant failed to show that there were any similarly situated employees not in her
protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:

2 Complainant explained that “A” Pouch meant she was armed with weapons.
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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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
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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

October 20, 2016
Date