EEOC Appeal 2020000638

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mandi B.,1
Complainant,
v.
Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 2020000638
Hearing No. 410-2018-00304X
Agency No. HS-TSA-02364-2017
DECISION
On October 24, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s November 4, 2019 final order 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 Transportation Security Officer (TSO)
assigned at the Augusta Regional Airport in Augusta, Georgia.
On October 24, 2017, Complainant filed the instant formal complaint. Complainant claimed that
she was subjected to harassment/a hostile work environment based on sex (female). In support of
this claim, Complainant cited the following incidents:
1. 	on May 2, 2017, she was issued a Notice of Proposed 14-Day Suspension;
2. 	on July 11, 2017, she received a Five-Day Suspension;
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.

2020000638	2
3. 	on August 1, 2017, her supervisor yelled at her;
4. 	on September 27, 2017, she was placed under investigation; and
5. 	on December 4, 2017, she received a Letter of Counseling (LOC).2
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to
the case issued a Notice of Proposed Summary Judgment on September 6, 2019. Complainant did
not respond to the Notice of Proposed Summary Judgment. On September 26, 2019, the AJ issued
a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant
final order implementing 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.
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. However, we have also recognized that not every factual
dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of
Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice,
EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant failed to establish a genuine
dispute that required a hearing. Even construing any inferences raised by the undisputed facts in
favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor.
The record developed during the investigation establishes that during the relevant period
Complainant was a TSO assigned at the Augusta Regional Airport in Augusta, Georgia. 	The
Supervisory TSO was Complainant’s first-level supervisor and the Transportation Security
Manager was Complainant’s second-level supervisor.
To prove her harassment/hostile work environment 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.
2 The record reflects that claim 5 was later amended to the instant formal complaint.

2020000638	3
Complainant must also prove that the conduct was taken because of a protected basis – in this case,
her sex. Only if Complainant establishes both of these elements – hostility and motive – will the
question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In her decision, the AJ determined that the Agency articulated legitimate, non-discriminatory
reasons for the alleged discriminatory actions. 	Regarding claims 1 and 2, the Transportation
Security Manager (Manager) (male) indicated that the Proposed 14-Day Suspension was issued to
Complainant for inattention to duty twice on the same day. He further stated that Complainant’s
supervisor and another TSO observed Complainant asleep while on duty on January 30, 2017. The
Manager eventually reduced the Proposed 14-Day Suspension to a 5-Day Suspension because “six
months passed from the occurrence of the incident to the issuance of the suspension. Considering
that, I felt that a fourteen-day suspension was too severe. I mitigated it down to a five calendar
day suspension.”
Regarding claim 3, Complainant alleged that on August 1, 2017, her supervisor yelled at her. The
supervisor (male) explained that there were several employees in a briefing that morning and “they
have approximately 20 minutes prior to the start of the shift to do whatever they need to do, but
when I come in and start the briefing, that’s the time I need everyone paying attention. 	If new
policies or procedures come out, that’s when I communicate that to the Officers.” He stated that
he asked Complainant “very politely and respectfully to put her phone away while we were in the
middle of briefing. They have 20 minutes prior to the shift to do whatever they need to do, but
when I come in and start the briefing, that’s the time I need everyone paying attention.” Further,
the supervisor stated that he asked Complainant to put away her phone “she started screaming and
yelling. If anyone was yelling that day, it was not me. It was her…it was a simple request and
there was nothing rude or disrespectful about it. She was the only person on her phone during the
briefing.” No evidence was presented to dispute the supervisor’s account.
Regarding claim 4, Complainant claimed that on September 27, 2017, she was placed under
investigation, the Assistant Federal Security Director (Assistant FSD) for Law Enforcement stated
that he was asked by the Federal Security Director to conduct an administrative inquiry because
there was a report that there was tension between Complainant and her supervisor. He stated that
he completed an informal inquiry and reported his findings and recommendations to the Federal
Security Director.
Regarding claim 5, Complainant asserted that on December 4, 2017, she received a Letter of
Counseling (LOC). The Supervisory TSO stated that on December 4, 2017, she issued
Complainant a Letter of Counseling. Specifically, the Supervisor TSO stated that on July 6, 2017,
Complainant was the X-ray operator and “she apparently did not stop the belt while a bag was
inside the tunnel when she was trying to annotate it. The belt continued to run far enough out so
the passenger was able to get his bag. 	After he got his bag and left the security checkpoint,
[Complainant] realized she did not have the bag in the tunnel.”

2020000638	4
The Supervisory TSO noted that Complainant denied that she allowed the X-ray belt to run while
examining the image on July 6, 2017. 	She stated that she and Complainant viewed the CCTV
video together and “you can see [Complainant] was preparing to look at the image and she did not
stop the belt. The bag was within the reach for the passenger and he took it. The belt should have
been stopped while she was analyzing the image. However, the belt continued to run and the bag
came out.” Furthermore, the Supervisor TSO stated that this was an occasion where Complainant
“had an instance of inattention to duty on the X-ray, so we decided to do a LOC.”
Beyond her bare assertions, there is no evidence to support Complainant’s claim that the disputed
incidents were motivated in any way by her sex. Responsible management officials testified to the
legitimate, non-discriminatory reasons for various actions, which were not proven to be pretextual.
Title VII only prohibits harassing behavior that is directed at an employee because of his or her
protected bases. Here, the preponderance of the evidence does not establish that the supervisors
involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 019982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, 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.

2020000638	5
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
September 17, 2020
Date