Sherry D. Nellums,
Complainant,

v. 

Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.

Appeal No. 0120080366

Hearing No. 490-2006-00004X

Agency No. DOT-7-03-2187

DECISION

On October 24, 2007, Complainant filed an appeal from the Agency's 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).  For the following reasons, the Commission AFFIRMS the Agency's final order.

ISSUES PRESENTED

The issues presented herein are: (1) Whether the hearing process was tainted by the Agency's Representative violating Complainant's attorney/client privilege; (2) Whether the EEOC Administrative Judge (AJ) failed to rule on Complainant's post-hearing objections regarding an Agency exhibit; and (3) Whether there is substantial evidence in the record to support the (AJ) determination that Complainant was not discriminated against or subjected to harassment on the basis of her race (Black).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a probationary Transportation Security Screener at the Little Rock National Airport, in Little Rock, Arkansas.1  On April 3, 2003, she filed a formal complaint alleging unlawful harassment because of race when: (1) her Supervisor (S-1) yelled at her and gave her a verbal warning; (2) a Shift Supervisor (SS) and a fellow screener (CW-1) used racial epithets when referring to her; (3) CW-1 made derogatory comments toward her and hit her on the back; (4), a Lead Supervisor (LS) slammed a door in her face; (5) CW-1 referred to her using profane language; (6) the Night Supervisor (NS) threatened to discipline her if she did not be quiet; and (7) she was placed on administrative leave.

The Agency accepted the complaint for investigation on May 2, 2005, and at the conclusion thereof provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ.  Complainant requested a hearing which the AJ held on August 9 - 10, 2007.  On September 12, 2007, the AJ issued a Bench Decision finding that Complainant had not been discriminated against as alleged.  That decision ultimately became the Agency's final order when the Agency did not issue an Order of its own within 40 days, and is the subject of this appeal.    

The following facts were set forth in the AJ's Bench decision and the record: 

With respect to issue (1), on November 20, 2002, Complainant attended a computer-based training course.  At some point, she began to engage in non-work related discussions with another employee instead of training.  This prompted S-1 (Caucasian) to request that Complainant stop talking and start the training program. Thereafter, a verbal altercation between the two ensued.  At the end of the day, S-1 gave Complainant an Employee Advice/Action Notice (EAN) for insubordinate conduct.  When both parties presented their version of the story to higher management officials, it was determined that no action would be taken on the matter, and that the EAN would not be a part of Complainant's personnel records.

With respect to issue (2), Complainant testified that on November 24, 2002, CW-1 (Caucasian) referred to her as a "Black bitch" in a conversation with SS (Caucasian).  Complainant further testified that she did not hear the comment, but she learned about it from a fellow co-worker (CW-2), who stopped her in the hall way and told her.  According to Complainant, she reported the matter to a Supervisory Transportation Security Screener (A-1)(Black).  According to Complainant, A-1 addressed the issue during the end of shift debriefing later that night and specifically stated that "we won't tolerate this anymore, this kind of behavior has to stop."  Contrary to Complainant's testimony, however, is an affidavit from A-1 stating that Complainant never mentioned anything to him about a racial slur.2  Also, CW-2 (Caucasian) testified at the hearing that she did not hear or mention to Complainant that CW-1 had referred to her as a "Black Bitch."  According to CW-2, she found that term offensive, would have remembered if she heard it and would have reported herself.  CW-1 stated that A-1 never spoke to him about using those terms.  (ROI, Aff. F-11).

Regarding issue (3), Complainant testified that when time came for screeners to change shifts, it was customary for the replacement screener to give the finishing screener a pat on the back but when that moment came on November 25, 2002, CW-1 smacked her in the back with an open hand.  She alleged that she reported the matter to SS whose response was that CW-1 did not mean anything by it.  SS testified that CW-1, as a male, would not have "tapped out" Complainant because screeners only tap those within their own gender group.  CW-1 denied smacking Complainant in the way she describes, and noted that the screening areas in which they work are monitored via security cameras, thus he and his co-workers are subjected to constant scrutiny. (ROI, Aff. F-11).
 
With regard to issue (4), Complainant testified that, on November 26, 2002, LS (Caucasian)  slammed a door in her face for allegedly being tardy for a team briefing even though she was one minute early.  LS denied that he slammed door in Complainant's face and stated that if an employee is late for a briefing, they would be "written up."    

With regard to issue (5), the record indicates that Complainant alleged that, on November 27, 2002, CW-1 demanded that she take notes on a whiteboard because that was "a woman's job," and shortly thereafter referred to her as a "bitch."  CW-1 denied making either statement.  

Regarding issue (6), the record indicates that Complainant alleged that while reading a magazine which belonged to another co-worker, NS approached her and stated screeners were not allowed to read while on post. Complainant stated that when she tried to explain that she was not reading, NS threatened to discipline her if she did not be quiet.

With respect to issue (7), the record indicates that on December 1-3, 2002, Complainant did not report to work.  Instead, according to the Scheduling Operations Officer (SOO), she called in requesting sick leave to care for a family member. Complainant denied calling in to request leave for a family member, however.  On December 6, 2002, the Agency received a faxed notice from a dentist office indicating that Complainant was under dental care, and would be able to return to work on December 12, 2002.  Though Complainant did not respond to management's request for more specific information regarding her absences, she testified at the hearing that she was off for two weeks due to oral surgery.  On December 14, 2002, Complainant called in to request leave to care for a family member, and the request was approved by Supervisor-2.  After not hearing from Complainant on December 15, 2002, the SOO contacted Complainant by telephone on December 16, at which point Complainant requested leave under the Family Medical Leave Act to care for her mother.  The Agency ultimately charged Complainant with being Absent Without Leave (AWOL).  

Complainant reported the matter to her Congressional representative and the matter was taken up by a Congressional Aide (Black), who contacted the Federal Security Director (FSD) (Caucasian).  The FSD testified that he was willing to accompany Complainant to the Airport to resolve whatever issues she may have had, and change her AWOL status to administrative leave.  The Congressional Aide, also a witness at the hearing, testified that he tried to help Complainant deal with the issue she reported to him, that is, obtaining medical leave to care for her mother.  He further testified that at no time did Complainant relay information to him regarding oral surgery or racial harassment.

The AJ's Ruling

The AJ found that none of the alleged incidents rose to the level of harassment or hostile work environment based on race under Title VII.  In fact, the AJ noted that the only incident that could be construed as racial was issue (2).  The AJ noted, however, that, among other things, Complainant did not hear the comment, but was told about it by CW-2.  CW-2, the AJ noted, testified that she never heard CW-1 refer to Complainant's as a "Black Bitch."  She also testified that she never approached Complainant and told her that such a comment had been made.  As for the remaining issues, the AJ found, among other things, that assuming they occurred it was clear that they were not sufficiently severe and pervasive to rise to the level of creating a hostile work environment.  In this regard, the AJ noted that, according to Complainant, the alleged conduct only lasted for approximately seven days, from November 20, 2002, until November 27, 2002, and then again on December 16, 2002.  

CONTENTIONS ON APPEAL

Complainant, who is no longer represented by an attorney,3 stated that she is appealing for the following reasons:  

First, she maintains that the hearings process was tainted because on August 9, 2007, the first day of the hearing, the Agency's Representative (AR) took a notebook from her hand and produced several photocopies of the materials contained therein before giving the original back to Complainant and her Attorney.  According to Complainant, the AJ, off the record, told AR to give the photocopies to Complainant.  Complainant contends, however, that all copies were not returned and were in plain view on top of AR's briefcase.  Complainant also maintains that the copies, which were obtained from her notebook, were used by AR as a "guideline" for Exhibit #A-8, which she used during her direct examination of several witnesses the next day.  Complainant stated that the AJ allowed the hearing to continue even though the proceedings had been "compromised" due to AR possessing privileged information between her and her Attorney.           

Complainant's second contention involves Agency Exhibit #1.  According to the record, Complainant submitted a sixteen page document to her Congressman's office.  Complainant and her Attorney maintained that her sixteen page letter outlined the full extent of her allegations against the Agency.  The Agency, however, maintained that when it was contacted by the Congressman's office it was only provided a five page document.  The Agency sought to have this document, that is, Agency Exhibit #1 submitted into evidence.  In a letter dated August 14, 2007, Complainant's Attorney wrote the AJ, prior to her Bench Decision being issued, maintaining that the exhibit had been "doctored," because of the page discrepancy. The Attorney speculated that the Agency, if it did not include all of the documents, did so in order to "[c]ultivate and leave the impression that [Complainant] never told anyone of her many complaints."  On appeal, Complainant maintains that the AJ never ruled on the issue raised in her Attorney's letter nor did the AJ return her copy of Agency Exhibit #1.            

The Agency provided no statement on appeal. 

ANALYSIS AND FINDINGS

As to Complainant's first contention, we note that the record is silent on this matter.  Although Complainant indicated that the AJ ordered AR to return the photocopies "off the record," we would have to assume that Complainant and her Attorney would have objected on the record if AR had not complied with the AJ's order.  We note in this regard that Complainant stated that the photocopies were in plain view.  With respect to Complainant's contention that the hearing process was tainted, we again find no objective evidence of this contention in the record.  Complainant maintained that Agency Exhibit #8, was based on information obtained from her notebook, and used by AR during her direct examination of several witnesses on the second day of the hearing.  An examination of Agency Exhibit #8, however, indicates that it is a calendar of the month of December 2002.  Although it was used to establish the dates that Complainant was off work, we find no evidence that AR relied on information that could only have come from Complainant's notes.  More important, however, is the fact that Complainant's Attorney stated that he had no objection when Agency Exhibit #8  was first used by AR;4 he stated that he had no objection when Agency Exhibit #8 was admitted into evidence;5 and he used Agency Exhibit #8 in his cross-examination of an Agency witness.6  

Regarding Complainant's second contention, we note Agency Exhibit #1 was never accepted into evidence.  Although AR offered it, the AJ found that it was of little probative value because the five pages were already contained in Complainant's entire 16-page submission which was already part of the record.7 Although he did not object to the admittance of Agency Exhibit #1, Complainant's Attorney noted that it was already contained in the record and that Complainant had no control over "what the Congressman' s office sent the Agency."8 We find no persuasive evidence that the Agency attempted to "doctor," this exhibit.  However, assuming arguendo that the Agency did alter its copy of Complainant's submission to her Congressman's office, we note that Complainant and her Attorney were aware at the hearing that Agency Exhibit #1 only consisted of five of the pages that Complainant maintained she provided her Congressman.  Knowing this, her Attorney did not object to it being admitted.9 Because the AJ denied admission of this exhibit, we find that Complainant was not affected by any alleged doctoring.10   

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record.  Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."  Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).  A finding regarding whether or not discriminatory intent existed is a factual finding.  See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).  An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.  An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.  See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).   

The Commission has the discretion to review only those issues specifically raised in an appeal.  Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999).  Because the Complainant does not specifically contest the AJ's factual rulings, legal conclusions and her determination that Complainant was not subjected to discrimination, we will exercise our discretion and not address these matters in the decision herein.  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 AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 9-18 (November 9, 1999).  All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security.  See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within the sole discretion of the Court.  Filing a request for an attorney with the Court does not extend your time in which to file a civil action.  Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
                                  
FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations


_____8/30/10_____________
Date


1 According to the Agency, there were 152 employees in the Little Rock National Airport as of November 20, 2002, through December 16, 2002. Of that total, there was 1 Asian employee (4%), 2 Native American employees (1.3%), 29 Black employees (19%), 1 Hispanic employee (4%), 108 White employees (71%), and 11 "other" employees (7.2%). Three employees were terminated during that same period. Of those 3 employees terminated, 1 employee was white (33%) and 2 employees were black (66%).

2 A-1's affidavit which is contained in the record is unsigned.  According to the Investigator, she made several attempts to obtain his signature, but, at that time, he was no longer an employee of the Agency. 
3 For purposes of this decision, we shall refer to Complainant's former attorney as her Attorney.
4 Hearing Transcript (HT), at page 290.
5 Id. at, page 307. 
6 Id.
7 Id., at pages 80-84.
8 Id., at page 83.
9 Although in fairness, he clearly thought that it was unnecessary because it was already in the file and "duplicative."  Id., at page 84.
10 Because Complainant's Attorney did not ask the AJ to return the copy of Agency Exhibit #1 that he provided in the letter, we will not address this issue. Complainant is advised to contact the AJ directly on this matter.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013   



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