U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zula T.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120142146 Hearing No. 550-2012-00089X Agency No. HSTSA182062010 DECISION Complainant filed an appeal from the Agency's December 2, 2013 final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). ISSUE PRESENTED The issue presented is whether the Administrative Judge's summary judgment determination was appropriate, based on the undisputed record. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency's Sacramento International Airport facility in Sacramento, California. On September 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, on August 24, 2010, the Agency denied her the opportunity to bid on a baggage inspection shift or job assignment as a baggage screener. Complainant identified five individuals who she believed made the decision which precluded her from the shift bid. Those individuals were the Federal Security Director (male) (S1), the Assistant Federal Security Director - Operations (female) (2), the Assistant Federal Security Director - Screening (male) (S3) and two other management officials (male). The pertinent record shows the following facts. Complainant was employed as a Transportation Security Officer (TSO) at the Sacramento International Airport. Her primary job duty was to "conduct screening of people, property and cargo at airport or other transportation terminals, as assigned" and "implement security screening procedures in accordance with TSA objectives and directives. Protects the traveling public by preventing deadly or dangerous objects from being transported onto applicable transportation modes." Complainant was a dual-certified officer trained to work assignments in both the passenger and baggage screening areas, referred to as "Checkpoint" and "Baggage," Report of Investigation (ROI),Tab F-1, p. 62. In August of 2010, the Agency assessed its operational needs. Based on its assessment, the Agency directed that all properly dual certified full time female Security Officers, including Complainant, needed to be available for female passenger screening assignments. The Agency decided that none of the "pat down-certified full time female Security Officers" could bid on Baggage inspection / screening assignments because they were needed for female screening and pat down services. On August 24, 2010, Complainant was denied the opportunity to bid on a baggage inspection assignment. It is undisputed that pursuant to agency policy and procedure set forth at TSA Management Directive No. 1100.61-4, staffing decisions were determined based upon a number of factors, including the number of officers available, the male to female ratio of the Officers, seniority, full or part time status, their certification to perform the duties required and the projected operational needs of the agency at that particular time. The anticipated volume of passengers also factored into the Agency's determination of the number of officers required. The Agency also relied on a software program as its primary tool for assigning and scheduling screener personnel with TSA. Further, airports rely on a "Gender Hiring Ratio for Category III and Category IV Airports. ROI, Tab F-5, p. 77, Agency Exhibit B. Under the Directive, management has the overall responsibility to ensure adequate shift coverage and the orderly operation of TSA airport functions. ROI, Tab F-11, p. 91. It is undisputed that "there are gender specific mandates that require at least 33% male and 33.3% female screeners working at the Checkpoint at all times due to TSA's operation requirement of providing passengers with a same gender screening pat-down. Agency Ex. C. that same requirement does not apply to baggage. The Agency procedure was that only female officers were permitted to screen female travelers. The Agency had to ensure a sufficient number of female officers available to perform these tasks. Similarly, male officers were assigned to screen male passengers. It was undisputed that the Agency places a priority on maintaining an adequate male or female Officer complement in order to perform the anticipated need to conduct male or female passenger screenings. ROI: Exhibits F1through F13. Complainant acknowledged in her affidavit that the reason full-time females were precluded from bidding the baggage position was "because of the lack of females on the checkpoint." Males were permitted to bid for both, but there was not a shortage of males available to do the screenings. Female Security Officers who were not dual certified were permitted to bid on the baggage screening assignments. It was undisputed that several female officers were assigned to conduct baggage inspections. Complainant named eight other female officers who were full-time, dual-function female TSOs, who were not allowed to bid for shifts in baggage. 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. Administrative Judge's Decision The AJ assigned to the case determined that the complaint was appropriate for summary judgment. Over Complainant's objections, the AJ issued a decision without a hearing on November 5, 2013. The AJ considered the action using both a disparate treatment analysis and a Bona Fide Occupational Qualification analysis. The AJ found that there was no dispute that only properly certified female offices could perform body screening and that this "uniquely" sensitive task was a "classic example of the Bona Fide Occupational Qualification (BFOQ) exception to Title VII. The AJ then reasoned that "the court must resolve one central question: Has the employee produced sufficient evidence for a reasonable fact finder to find that the employer's asserted non-discriminatory reasons were not the actual reasons and that the employer intentionally discriminated against the employee on the basis of her sex?" The AJ concluded that "there is no such evidence in the record before [him]." Next, the AJ found that Complainant was subjected to the same assignment schedule as were all of her similarly situated colleagues who were authorized to perform screenings and pat downs, and that the schedule was determined after an analysis of non-discriminatory criteria. The AJ stated that "the proper inquiry in this and similar cases is whether the agency officials responsible for making the job assignment decisions in issue honestly believed that...complainant needed to fulfill the agency's priority related to the availability of a sufficient number of female Security Officers certified to screen female passengers." He found that the agency met that burden and that there was "no evidence to the contrary." The AJ found that a fact-finder cannot second-guess the employer's criteria and that management has discretion to assign staff to particular jobs so long as their decision "is not based upon unlawful criteria." The AJ then found that "Complainant is unable to establish that on or about August 24, 2010, she was denied the opportunity to bid on a baggage inspection shift or job assignment because of her sex (female)." The Agency did not issue a final order within 40 days, but subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the AJ's decision "to dismiss the case without a hearing was in error of fact and law." Complainant maintains that the AJ erred in finding that Complainant failed to establish that she was denied the chance to bid on a baggage shift because of her gender. She asserts that the bidding options of dual function male TSOs were not restricted and that the Agency failed to establish that allowing Complainant to bid on a baggage position would have caused the Agency not to meet its operational needs. Complainant maintains that a hearing is necessary to allow Complainant to question witnesses and to complete the record. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ's 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. (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"). First, we find that it was procedurally appropriate for the AJ to have issued a decision without a hearing on this record because the record has been adequately developed for summary disposition. Disparate Treatment: Terms Applicable to the Bid This case involves a determination of whether the agency's policy of making certain job assignments based on the employees' gender was unlawful. Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . sex." 42 U.S.C. Section 2000e-16(a). To establish a claim of disparate treatment on the basis of sex, a complainant must show the agency took an adverse employment action against the complainant because of the complainant's sex. This can be shown through either direct or indirect evidence. Where there is direct evidence of discrimination there is no need to prove a prima facie case or facts from which an inference of discrimination can be drawn. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Liability is established where the trier of fact finds that there is direct evidence of discrimination. See Lusardi v. Department of the Army, EEOC Appeal No. 0120133395 (April 1, 2015. Here, Complainant alleges that the Agency subjected her to sex discrimination when it treated her differently than other dual certified employees, because she is female. The record, however, does not show that ALL women were excluded as baggage screeners. The Agency assigned part-time women and those who were not dual certified, as baggage screeners. Second, we find that there was no genuine issue of material fact, given the substantive legal and evidentiary standards that apply to the case. In this case, the Agency acknowledges that its policy included a sex-based criterion. It needed or wanted to have a certain number of female TSOs. Title VII - Bona Fide Occupational Qualification (Sex) Section 703(e) of Title VII permits classifications based on sex "where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. Section 2000e-2e(1). This Title VII private sector provision also applies to the federal sector. Since the existence of an explicit sex-based classification constitutes a prima facie showing of Title VII violation, we therefore apply the BFOQ analysis. A cause finding would be appropriate if the employer failed to show that its sex-based restrictions were required as a business necessity and that there was no reasonable alternative with a less discriminatory impact. Employers must prove certain elements to assert a BFOQ defense. See Dothard v. Rawlinson, 433 U.S. 321 (1977) (upholding a BFOQ defense with regard to the correctional facility.) Further, as stated at 29 C.F.R 1604.2, 'the Commission believes that the bona fide occupational qualification exception as to sex should be interpreted narrowly." The law bars the refusal to hire an individual because of the preferences of the employer or customers except where it is necessary for the purpose of authenticity or genuineness. In this case, the Agency's mission involves national security and the operation of an international airport. The essence of the employer's business is airline safety and the safe transport of passengers. Performing the screener job is essential to the employer's business and public safety. It defends its actions, in part, by pointing out its mission and the necessity of Complainant's core duties as a TSO. The stated reason was the need to have an adequate supply of certified female Officers available to do same-sex pat-downs. It was undisputed that pat-downs are necessary for security. The record appears to be undisputed with regard to the fact that the essence of the business would be undermined if the employer did not employ a sufficient number of male and female screeners. Because of the sensitive nature, it must employ exclusively members of a certain sex. The main dispute at issue, if any, is whether there was any cost efficient reasonable alternative. Neither party has offered evidence of the existence of such a viable alternation. Further, there is no evidence that the job in question could be, or had been, successfully performed by members of the excluded sex. That issue is not material to the question at issue, whether this was sex-based. As to whether sex was a factor, the facts are undisputed. Finally, because we find that the policy contained a gender specific requirement, we find that the AJ erred when he found that Complainant was not subjected to sex-based disparate treatment. The Agency acknowledged that it relied on a gender specific hiring ratio which precluded her from bidding. Consequently, we find that the record supports a finding that the Agency's refusal to accept her bid was sex-based. We modify the AJ's decision, to the extent that the AJ concluded that Complainant was unable to establish that she was denied the opportunity to bid because of her sex. The undisputed reason, however, shows that the AJ decision was proper with regard to the findings of law. Looking at the evidence in the light most favorable to Complainant, the Agency's actions in providing for an adequate number of TSOs for screening met the narrow definition of the BFOQ standard. For all of these reasons, we find that the AJ's decision was procedurally appropriate, based on the analysis herein and for the reasons stated herein. We find that the AJ erred in his statement of the burden of proof and in concluding that Complainant failed to carry her burden of proof. Nevertheless, we find that the record supports a determination as a matter of law, in favor of the Agency. CONCLUSION Based on our analysis and for the reasons stated herein, we MODIFY the Decision, but AFFIRM the Agency's Final Order's finding. 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 tends 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 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 August 16, 2016 __________________ 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 0120142146 2 0120142146