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

Equal Employment Opportunity Commission

Jun 28, 2016

0120140385 (E.E.O.C. Jun. 28, 2016)

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

Stephani G.,1
Complainant,

v.

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

Appeal No. 0120140385

Hearing No. 570-2013-00083X

Agency No. HS-TSA-22164-2012

DECISION

The Commission accepts Complainant’s appeal from the Agency’s September 23, 2013 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. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Federal Air Marshal (SFAM) at the Agency’s Washington Field Office in Chantilly, Virginia.
On October 26, 2010, Complainant met with her first-line supervisor (S1) regarding her
performance score. S1 informed Complainant that she had received the second-highest score
of the SFAMs at the Washington Field Office. Additionally, Complainant received an
“Achieved Excellence” rating, the highest possible rating in the Agency’s performance system.
Complainant later learned after seeing a spreadsheet containing names and performance scores
of S1’s other SFAMs, however, that she did not actually receive the second-highest score. On
November 23, 2010, Complainant emailed S1 regarding the discrepancy in her performance

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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appraisal. S1 subsequently changed the Complainant’s score and signed the new performance
appraisal.

In December 2010, Complainant began working on a simulator project. When another
Assistant Special Agent-in-Charge joined the project, Complainant called it “idiotic.”
Complainant’s supervisor at the time, the Assistant Special Agent-in-Charge (ASAC) verbally
counseled Complainant about her use of language.

Between August and December 2010, ASAC noticed that Complainant was routinely staying
late in the office. Complainant told ASAC that she was staying late because she had missed a
deadline. As a result, ASAC discussed with Complainant that some of her duties may need to
be redistributed to other SFAMs.

In December 2010, Complainant was transferred back to S1’s supervision; however, she was
transferred out again in February 2011. In July 2011, against Complainant’s wishes, she was
transferred back to S1’s supervision

In September 2011, Complainant and S1 continued to have work-related disputes, and
Complainant again requested to be transferred to another supervisor. On January 3, 2012, S1
and Complainant were involved in a disagreement about processes. While standing in his
office, Complainant made comments to the effect of “this is a bunch of shit.” About an hour
later, S1 verbally counseled Complainant on her language and described her as being
emotional. S1 later asked the Administrative Supervisor if she had heard his conversation with
Complainant. The Administrative Supervisor stated that she had not, but told S1 about an
incident in which Complainant looked at personally identifying information and employee
personnel files to see the performance appraisal scores of other SFAMs.

On January 6, 2012, S2 submitted an incident tracking report documenting Complainant’s
unauthorized viewing of performance scores and employee personnel files. On January 18,
2012, Complainant was informed that she would be transferred to a new first-line supervisor
and a new second-line supervisor. On January 30, 2012, S1 issued Complainant her 2010-
2011 performance evaluation. Complainant received a rating of “Exceeded Expectations;”
however, S1 included several comments regarding areas where he believed Complainant’s
performance could be improved. Complainant subsequently retired from the Agency on
November 30, 2012.

On April 26, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO
activity when:

1. On January 30, 2012, Complainant was given a performance evaluation which
contained derogatory language; and

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2. On March 7, 2012, Complainant discovered that disciplinary action had been
initiated against her for her use of language and being too “emotional.”

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on August 14, 2013.

In his decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions as to claim (1). Particularly, S1 identified specific performance issues in
the areas of multi-tasking, flexibility, and communication, and highlighted examples in support
of his conclusion that those areas needed improvement. In the area of multi-tasking, S1 noted
that Complainant was not as efficient due to her inability to attain a full grasp of and coordinate
multiple functions and cited the backlog of conduct and discipline cases and maintenance issues
as examples of Complainant’s challenges in this area. Regarding flexibility, S1 stated that
Complainant occasionally did not demonstrate the ability to handle the sudden changes in the
administrative processes without having a negative impact on operation readiness of herself,
her squad, and the Washington Field Office. S1 identified one occasion when Complainant
brought to his attention that she was overwhelmed by processes and responsibilities. When he
attempted to disseminate some of the functions associated with the Administrative SFAM
position, she was reluctant to let go of those roles. Finally, as to communication, S1 pointed
out that Complainant’s communication practices created obstacles in dealing with local
property managers as opposed to creating efficient, effective, and timely outcomes with facility
maintenance needs. On more than one occasion she made negative remarks regarding the
civilian property manager when a response she expected did not occur within a certain
timeframe. The AJ concluded that Complainant failed to show that the Agency’s reasons for
its actions were pretext for unlawful discrimination or reprisal.

With regard to claim (2), the AJ determined that Complainant failed to establish a prima facie
case of discrimination and reprisal. The AJ found that Complainant failed to show that the
Agency’s decision to initiate the incident tracking report in January 2012 resulted in an adverse
action. The incident tracking report is not a disciplinary action, but instead is the first step in
an inquiry or investigation to determine if misconduct has occurred. There is no evidence that
Complainant was subjected to discipline or that she was adversely affected in any way
following the issuance of the incident tracking report.

The AJ concluded that Complainant failed to show that she was subjected to discrimination or
reprisal as alleged. The Agency subsequently issued a final order fully implementing the AJ’s
decision. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ abused his discretion by denying her motion to
consolidate this complaint with another pending complaint. Next, Complainant contends that
the AJ erred in granting summary judgment in favor of the Agency as material facts remain in
dispute. Further, Complainant claims that she was the only one of the three SFAMs evaluated
by the same core of management officials who was subjected to negative comments on her
performance evaluation. In addition, Complainant argues that the AJ erred in finding that
initiation of the incident tracking report was not an adverse action. Accordingly, Complainant
requests that the Commission reverse the final order.

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.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that Complainant failed to present
evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. More
specifically, with regard to her performance evaluation, S1 affirmed that Complainant’s
evaluation, rated her “Exceeds Expectations,” and mentioned areas where Complainant could
improve. ROI, at 104. For example, S1 stated that he noted in the evaluation that
Complainant’s performance was not efficient based on an incident where it took her five
months to complete a disciplinary case because she was reluctant and negligent in calling
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individuals with whom she had to work. Id. In addition S1 noted that Complainant did not
respond well to guidance and that she spent a lot of time catching up with her work. Id. at
105. S1 explained that he stated that Complainant “pushed back” when she did not agree with
instruction based on how she responded to his instructions and that she communicated poorly
based on occasions where she called an Assistant Special Agent-in-Charge an “idiot” and
called the building landlord a “bitch.” Id.

With regard to claim (2), S1 affirmed that Complainant acted unprofessionally and used
inappropriate language in his office on January 3, 2012. ROI, at 106-07. S1 stated that he
verbally counseled Complainant about her language and conduct and told her that if she wanted
to express her emotions, she could do so in private. Id. at 107. When S1 later asked the
Administrative Supervisor if she had overheard the conversation with Complainant, the
Administrative Supervisor then informed him of the August 2010 incident in which
Complainant looked at personal identifying information and employee personnel management
files to compare her evaluation scores to the other SFAMs. Id. Complainant’s viewing of
documents without authorization violated Agency policy; therefore, S1 initiated the incident
tracking review on January 3, 2012. Id. at 108.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions.
Complainant's subjective belief that the management actions at issue were the result of
discrimination or reprisal is insufficient to prove pretext. At all times, the ultimate burden
remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency's reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. Finally, to the
extent that Complainant contends that she was subjected to a hostile work environment with
respect to the matters herein, the Commission finds that a finding of a hostile work
environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory or
retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21,
2000). As a result, the Commission finds that Complainant has not established that she was
subjected to discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
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Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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:

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
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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

June 28, 2016
Date