Yvonne P.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Feb 27, 2019

2019000041 (E.E.O.C. Feb. 27, 2019)

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

Yvonne P.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 2019000041

Hearing No. 570-2017-00674X

Agency No. HS-TSA-24629-2015

DECISION

On September 17, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 31, 2018 final order concerning an 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Transportation Security Specialist (TSS) at
the Agency’s Office of Security Operations in Arlington, Virginia.

On May 20, 2016, Complainant filed the instant formal complaint. Complainant claimed that she
was subjected to ongoing discriminatory harassment based on sex (female), age (over 40), and in
reprisal for prior 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.
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1. on November 6, 2012 and ongoing, the Section Chief required her to correct adequate
inspection reports before her vacation;

2. on November 6, 2012 and ongoing, she was the only TSS required to receive approval
from the Section Chief to post travel updates;

3. on November 6, 2012 and ongoing, she was the only TSS required to change her
voicemail when out of the office;

4. on November 6, 2012 and ongoing, she was the only TSS required by the Section Chief
to call in and out, and send an email when she is sick;

5. in July 2015, the Section Chief treated her as if she did not know her job even though
she is a senior and experienced employee;

6. in July 2015, she was forced to work at night during the week to fix alleged problems
with her inspections;

7. on an unspecified date, she was blamed and held responsible for congressional inquiries
on matters which were not her fault;

8. during the week of July 20-24, 2015, the Section Chief subjected her to surveillance
when he accompanied her on inspection trips and then did nothing to assist with the
inspection;

9. on July 22, 2015, she was required by the Section Chief to treat half of the office they
were visiting to lunch at her expense;

10. on August 3, 2015, she was threatened with receiving unfairly low performance
evaluations;

11. on August 4, 2015, the Section Chief often demonstrated disrespect and hostility
toward her in front of others;

12. on August 5, 2015, she received a Letter of Counseling from the Section Chief for
inspection report deficiencies; and

13. on April 11, 2016, the Section Chief asked her to pay for a gift for a coworker, claiming
he had forgotten his wallet.

After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). On July 11, 2018, the AJ issued a decision
by summary judgment in favor of the Agency. Based on the undisputed evidence developed during
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the investigation, the AJ concluded Complainant had failed to prove discrimination or unlawful
retaliation as alleged. The Agency issued its final order adopting the AJ’s decision.

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).

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 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.

To prove her ongoing harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis – in this case, sex, age and/or retaliatory animus.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself.

Here, the AJ properly concluded that the evidence of record did not establish that Complainant
was subjected to harassment based on sex, age and prior protected activity.

Prior to conducting an inspection, Complainant and her fellow TSS team members were required
to submit a travel request form and agenda. Upon return from travel, Complainant and other TSS
were required to submit an inspection report through the Agency’s Performance and Results
Information System (PARIS) system and provide the Section Chief with a version of their travel
reports.

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Regarding claim 1, Complainant asserted that on November 6, 2012 and ongoing, the Section
Chief required her to correct adequate inspection reports before her vacation.

The Section Chief (male, year of birth 1964) was Complainant’s supervisor during the relevant
period. The supervisor stated that the inspection report for the Portland, Oregon field office “was
rejected as the report contained inaccurate information and was incomplete.” The supervisor stated
that Complainant was provided until August 31, 2015 to correct the report and resubmit it to him.

Moreover, the supervisor noted that there was no indication that Complainant was on approved
vacation in July/August as verified in Webta and Branch Calendar.”

Regarding claim 2, Complainant alleged that on November 6, 2012 and ongoing, she was the only
TSS required to receive approval from the Section Chief to post travel updates.

The supervisor stated that there is no evidence in the record indicating he only required
Complainant to post travel updates. The supervisor stated that he requires his staff “to post after
action inspection reports once reviewed and approved by Section Chief on the Aviation Programs
Branch Travel Tracker.” The supervisor explained that the Branch Travel Tracker allows him and
the Branch Manager to track travel, airports visited, cost comparison and cost effectives.

Further, the supervisor stated that all employees, including Complainant, are required to provide
their draft reports to him for review and approval prior to posting. The supervisor stated “everyone
knows the process is to do a travel request form, along with an agenda, which I review and submit
to the Branch Manager for travel approval. When the employee returns from travel, employee
submits an inspection report thru the system and then provide me a word document with the trip
report. I review that and then I allow them to post on the branch folder.”

Regarding claim 3, Complainant alleged that on November 6, 2012 and ongoing, she was the only
TSS required to change her voicemail when out of the office.

The supervisor stated that Complainant “as well as other staff handle approx. 700 operators each
and cater to a large number of emails and voice calls daily. It is an office requirement to update
office voicemail when employee is out of the office including Microsoft outlook email messaging
to notify internal and external audience of out of office status and to teach out to alternate person
for important messages/calls.”

Regarding claim 4, Complainant claimed that on November 6, 2012 and ongoing, she was the only
TSS required by the supervisor to call in and out and send an email when she is sick.

The supervisor stated that it is office policy to inform first line supervisor or a designee when
employees are unable to report to work. The supervisor stated that on a particular day, he contacted
Complainant through email and phone concerning her absence. The supervisor stated that
according to Complainant, she contacted another employee who no longer works for the Agency
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and “that she had emailed me that she will not be reporting to duty that day. The Section Chief
wasn’t aware and didn’t receive any emails or phone calls from Complainant.”

Regarding claim 5, Complainant asserted that in July 2015, the supervisor treated her as if she did
not know her job even though she is senior and experienced employee.

The supervisor stated that on August 4, 2015, he conducted a formal counseling session with
Complainant. Specifically, the supervisor stated that the formal counseling session was initiated
due to an informal counseling that took place in the Section Chief’s office “on July 28th, 2015
around 12:45pm was unsuccessful. The complainant attitude was unwelcoming, agitated and
hostile. In order not to escalate further, the Section Chief decided to hold a formal session at a
later date with another Section Chief present to witness the counseling.”

Further, the supervisor stated that the formal counseling session was conducted “to discuss and
formally address the inspection inaccuracies, multiple congressional inquiries and field complaints
the Section Chief had received on the Complainant and to discuss how to resolve them as a team
and offer assistance.”

Another Section Chief (male, over 40) stated at that time he was Complainant’s second level
supervisor (Supervisor 2). Supervisor 2 noted that during the July 28, 2015 informal counseling
session, Complainant “was very much agitated, hostile and wasn’t in a state of mind which was
conducive to the discussion. This is when the Section Chief decided that it will be in best interest
of both parties to have the discussion in a formal setting to achieve a more favorable resolution
based on agency counselling policies.”

Supervisor 2 stated that during the relevant period, he noted that Complainant did not include his
name as an inspector on her reports in or around July 2015 and August 2015. Supervisor 2 stated
that it is Agency policy to have the lead inspector select all inspectors accompanying in the
inspection “be listed as secondary to include supervisory inspectors. The complainant was lead
Inspector that day and even though she added the local inspectors, she omitted listing the section
chief/supervisory inspector in the draft PARIS inspection entities and Section Chief pointed this
out so the complainant can correct the entries for accuracy.”

Regarding claim 6, Complainant claimed that in July 2015, she was forced to work at night during
the week to fix alleged problems with her inspections.

The supervisor stated that during the August 4, 2015 formal counseling session, he discussed the
inspection feedback and accurate report submissions with Complainant, and she “was advised to
correct the inaccuracies and make necessary updates to the inspection entries and report. No
implied or direct direction was given by the Section Chief to have the Complainant work outside
the Complainant’s normal work schedule. Section chief has [not] directed any employees in the
unit to work outside duty hours. Moreover, the Section Chief is not authorized to provide
Overtime/Comp time without prior authorization/approval.”

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Regarding claim 7, Complainant alleged that on an unspecified date, she was blamed and held
responsible for congressional inquiries that were not her fault.

The supervisor explained that the August 5, 2015 formal counseling session was conducted “to
discuss, gather the facts of the issues and provide assistance to the complainant. The Complainant
was identified specifically in the Congressional Inquiries/industry emails and TSA field emails as
unreachable/unresponsive to inquiries...Complainant was the only employee receiving
congressional inquiries specifically addressing unreachable and/or being unresponsive.”

Regarding claim 8, Complainant claimed that during the week of July 20-24, 2015, the Section
Chief subjected her to surveillance when he accompanied her on inspection trips and then did
nothing to assist with the inspection.

The supervisor stated that during the inspections in Portland, Oregon, he provided guidance to
Complainant and “provided guidance to the stakeholder being inspected. Furthermore, as part of
annual performance, inspection travel provides a platform to provide the employee operational
guidance, share expectation and oversee inspection work plan requirements etc.”

Further, the supervisor stated that he noted Complainant’s negative attitude during and after the
Portland, Oregon trip. The supervisor stated that his “accompaniment with the Complainant was
to provide guidance, support on the inspection trip and not to conduct ‘surveillance’ on the
Complainant.”

Regarding claim 9, Complainant asserted that on July 22, 2015, she was required by the Section
Chief to treat half of the office they were visiting to lunch at her expense.

The supervisor explained that it was not a requirement that Complainant treat half of the office
they were visit to lunch at her own experience “but a request to a courtesy gesture for the local
inspectors for their assistance.” The supervisors stated that the local inspectors from the Portland
field office were generous driving him and Complainant “to the various stakeholder offices for
inspections…when lunch time came around, the Section Chief paid for an accompanying inspector
then asked Complainant discreetly if she would like to pay lunch for the other inspector as a
common courtesy. Complainant replied ‘sure’ and that was it. There was no coercion or push to
have the Complainant pay for the Inspectors’ meal. If the Complainant was unsure or would have
communicated her unwillingness to the Section Chief, the Section Chief would have immediately
maid the meal expense.”

Regarding claims 10 and 12, Complainant alleged that on August 3, 2015, she was threatened with
receiving unfairly low performance evaluations and on August 5, 2015, she received a Letter of
Counseling from the Section Chief for inspection report deficiencies.

The supervisor explained that ever since Complainant started working for the Agency in 2015, the
Section Chief “always maintained a professional, respectful attitude with all the employees
including the Complainant.” The supervisor further stated that during the August 4, 2015 formal
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counseling session, Complainant was placed on notice that based on the inspection observations,
congressional inquiries, stakeholder complaints that her performance would be evaluated
“accordingly unless performance is improved. This was not foreseen as a threat by the Section
Chief but rather as a mutual understanding of the section/branch expectations and a platform for
the Complainant to improve/excel in her duties as a J band employee. Since then, the Complainant
has demonstrated an attitude of receptiveness and engaged in multiple fronts showing that she is
willing to engage and able to improve.”

Furthermore, the supervisor stated that Complainant and management continued to have
discussions and “feedback has resulted in an improved performance since the counseling session
and the Complainant has received a rating of ‘exceeded expectation’ from the Section Chief for
FY2015 and FY2016.”

As to claim 12, the supervisor acknowledged that on August 5, 2015, she received a Letter of
Counseling “as record of the counseling session and to highlight the work performance and a
correction plan.”

Regarding claim 11, Complainant alleged that on August 4, 2015, the Section Chief often
demonstrated disrespect and hostility toward her in front of others.

The supervisor stated that during the relevant period he “always maintained a professional,
respectful attitude with all employees including the Complainant. The date [referenced] here,
August 4, 2015 was the documented formal [counseling] session where the Complainant was
treated with respect.”

Regarding claim 13, Complainant asserted that on April 11, 2016, the Section Chief asked her to
pay for a gift for a coworker, claiming he had forgotten his wallet.

The supervisor stated that an inspector from the Los Angeles field office came to work in this
office on a detail position. The supervisor explained after 3 months of detail, the inspector was
due to return to the Los Angeles field office, and “as a token of appreciation, I decided to provide
a small memento from our group.” He asked Complainant to join him finding a gift and she agreed
to go with him. The supervisor stated when they found a gift for the inspector, he “reached out to
his back pocket and realized that he had forgotten his wallet that day. A typical case of
forgetfulness and to avoid an embarrassment and to have the gift ready for pick [up] time, Section
Chief requested if Complainant could pay and the Section Chief will pay the full amount on the
bill in the cash the next day. Complainant at that time never posed any concerns and paid for the
gift.” Furthermore, the supervisor stated that he paid Complainant the next day and she stated
“thanks” to him.

At no point, either below or on appeal, has Complainant proven that her age, sex or prior protected
activity played any role in the events she alleged supported her claim of ongoing discriminatory
harassment.

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Accordingly, we AFFIRM the Agency’s final order, implementing the AJ’s decision by summary
judgment finding no discrimination.

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).

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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 27, 2019
Date