0120161180
02-22-2018
Wilda M.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilda M.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120161180
Hearing No. 510-2014-00444X
Agency No. HSTSA000582014
DECISION
On February 29, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 27, 2016, final decision (FAD) 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Federal Air Marshal at the Agency's Federal Air Marshal (FAM) Service Field Office facility in Orlando, Florida.
On January 17, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability2 (residuals of neck surgery), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On September 25, 2013, management ordered Complainant to respond to an Incident Tracking Report; and
2. On January 22, 2014, Complainant's request for a workspace to work on her EEO complaint was denied.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that management officials articulated legitimate, nondiscriminatory reasons for their actions and that Complainant failed to establish that such reasons were pretextual.
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, 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").
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination.
We next find that the Agency articulated a legitimate, nondiscriminatory reason for ordering Complainant to respond to an incident tracking report when the Assistant Supervisory Air Marshal in Charge (ASAC: male, no disability) averred that he learned from Complainant's coworkers that while traveling with Complainant's husband on a work-approved flight to New York City they had observed Complainant on the same flight. See Report of Investigation (ROI), Exhibit F-3, p.4. ASAC further averred that "it is a violation of [Agency] policy for family members to fly with on-duty FAM personnel. . . . I asked the Complainant to respond to the Incident Tracking Report regarding her being on the same flight as her husband on September 23, 2013."
The Agency having articulated a legitimate, nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason was a pretext to mask discrimination. See Hicks; Burdine; McDonnell Douglas. Complainant acknowledges that she and her husband were on the same flight, but averred that this was accidental. Complainant further averred that two brothers who are FAMs "fly missions together and are assigned to the same team. [ASAC] has not investigated the two brothers, who are family, for violating [Agency policy]." Complainant's Supervisor (S: male, no disability) averred that Complainant was a Supervisory FAM while her husband was not, and "[w]e would refrain from having supervisory spouse supervise a subordinate spouse in the workplace." ROI, Exhibit F-4, p. 5. S further averred that the two brothers "are in the same squad, do not have a supervisory/subordinate relationship and could therefore fly together on mission status." Finally, S averred that Complainant received no discipline for the issue. See id.
Following a review of the record we find that Complainant has not shown, by a preponderance of the evidence, that the Agency's articulated reason for its action was a pretext to mask discrimination or reprisal. With regard to the FAM brothers who she maintains traveled together, the record shows Complainant was not similarly situated with them because she was a Supervisory FAM while they were not.
With regard to the denial of Complainant's request for a workspace to work on her EEO complaint, we note that Complainant averred that at the time of the incident she had been out on worker's compensation since January 2012, and that she needed the office computer because "my home computer at the time was out of service." We therefore find that this incident does not constitute a denial of official time but rather a straightforward claim of disparate treatment. We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action when ASAC averred that:
I asked the Complainant for a case number or a reason why she needed the office as I would ask anyone else that requested the use of an office. Once the Complainant provided a reason for her need for the office and computer I provided her with the office and computer. I believe the Complainant came in to the [facility] on January 28, 2014 and used a private office to conduct her EEO business. . . . The Complainant was not denied the use of a work space or computer. The Complainant initially said she wanted to come to the office and did not provide a reason. I wanted to know the reason because the Complainant was out on worker's compensation and could not work. If the Complainant was well enough to come into the office and work then she should have returned to duty. I was attempting to clarify if the Complainant was well enough to return to work.
ROI, Exhibit F-10, pp. 1-2.
In her rebuttal statement, Complainant averred that ASAC was untruthful and that it was not until after her attorney complained to the Agency's Civil Rights Division that ASAC allowed her to use an office computer, and only "for about 45 minutes" in a cubicle with no office supplies. See Exhibit F-9, p. 4. Complainant further averred that a male FAM:
[W]as arrested for DUI in January 2014 and his flying duties were taken away. He was given an office [at the facility] where he remains to this day. He has full access to the office and works Monday to Friday. I have never been arrested, am suffering from an on the job duty related injury and have no access to the office, nor do I have access to policies/procedures regarding my career. The [facility] has taken away my ability to access any/all agency information to include internet, cell phone, government identifications, building access, etc. Male employees are given complete and full access to everything but I am denied access.
Id,. p. 2.
Following a review of the record we find that Complainant has not met her burden of establishing that the Agency's articulated reason was a pretext. With regard to the male FAM who is allowed to use an office despite losing his flying duties, we note again that Complainant is not similarly situated with him because she is a Supervisory FAM while he is not. Furthermore, Complainant was out on worker's compensation at the time, but she has not shown that the male FAM, with whom she seeks to compare herself, was also on worker's compensation. Accordingly, Complainant cannot establish that any difference in treatment was due to her sex, disability, and/or in reprisal for prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established that discrimination or reprisal occurred, and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 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
February 22, 2018
__________________
Date
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.
2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
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