Helene Herskowitz,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520100135
Appeal No. 0120081768
Hearing No. 520-2007-00123X
Agency No. HS05TSA001727
DENIAL
Complainant timely requested reconsideration of the decision in Helene
Herskowitz v. Department of Homeland Security, EEOC Appeal No. 0120081768
(November 6, 2009). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
At the time of the events giving rise to this complaint, complainant
worked as an Assistant Federal Security Director (AFSD) for Regulatory
Inspections at the agency's Long Island MacArthur Airport (MacArthur
Airport) in New York. As an AFSD, complainant managed the regulatory
programs for MacArthur Airport and the Westchester County Airport.
On December 28, 2005, complainant filed an EEO complaint alleging that she
was subjected to discrimination on the bases of sex (female), religion
(Jewish), age (forty-nine years old), and reprisal for prior protected
EEO activity under Title VII when:
1. in August 2005, the agency diminished complainant's position in
authority and made her subordinate to a less-qualified individual at
another facility;
2. since August 2005, management altered complainant's duties, threatened
her with relocation, excluded her from meetings, and began to direct
her staff without her input or knowledge; and
3. the agency failed to adequately investigate complainant's complaints
of receiving harassing and threatening telephone calls.
With respect to claim (1), the record indicates that, in July 2005, the
agency introduced a nationwide Hub-Spoke Realignment and Reallocation Plan
(plan) to alter the operational relationships of FSD offices at various
airports, create principal (hub) and dependent (spoke) airports, and
realign FSD staffing patterns. The plan designated LaGuardia Airport as a
hub, and MacArthur Airport and Westchester County Airport as spokes. In
August 2005, local management officials transferred MacArthur Airport's
regulatory staff to LaGuardia Airport, except for complainant, who
remained at MacArthur Airport.
Although management did not change complainant's job title, grade, or
pay, it transferred all of the Aviation Security Inspectors working under
her to LaGuardia Airport, to be supervised by C-1, the male AFSD at that
location. In addition, some of complainant's regulatory responsibilities
were transferred to C-1. The result was that complainant now reported
to C-1 with regard to the regulatory program. The Federal Security
Director for the LaGuardia Airport testified that the position of AFSD
at LaGuardia Airport was already occupied by someone else, i.e., C-1,
and the airport did not have another such position available. He also
stated he had no authority to replace C-1 with complainant, and that
the agency never implemented business rules requiring incumbents in the
regulatory workforce to compete to keep their jobs.
The agency accepted claims (1) and (2) for investigation. Claim (3)
was dismissed on the grounds that the conduct at issue was not
sufficiently severe or pervasive enough to constitute hostile work
environment harassment. Subsequently, after a two-day hearing, an EEOC
Administrative Judge (AJ) found no discrimination with respect to claim
(1) and (2) and affirmed the dismissal of claim (3). The agency issued a
final order adopting the AJ's finding. On appeal, the previous decision,
in affirming, the agency's final order, found that there was substantial
evidence in the record to support the AJ's decision.
In her request for reconsideration, complainant, through her attorney,
argued that the previous decision erred with respect to claim (1).1
Complainant argued that the "crux" of her case concerns the agency's
failure to implement business rules that would have required incumbents
to compete to keep their jobs. Specifically, complainant argued that,
"[t]he gist of complainant's complaint is that the agency should have
either by rule or by action placed the lesser qualified person, despite
his incumbency at a particular airport, in the lesser post, at a different
airport in the same region. Not doing so because the agency did not
have a rule in place is not a legitimate reason." Although complainant
acknowledged that the result in this case was "determined" by the fact
that C-1 was presently located in LaGuardia, she maintained that, the
agency's failure to implement rules in favor of more qualified employees,
"amounts to affirmative discrimination and retaliation."
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the
request. As noted by the previous decision, the agency's reorganization
plan constitutes a legitimate, nondiscriminatory reason for its actions.
Complainant failed to establish pretext. On the contrary, complainant
essentially acknowledged that discrimination did not play a role here
when she stated that C-1's location at LaGuardia determined the result.
The agency's failure to implement rules that would have allowed her to
compete with C-1 may not have been a wise business practice, but it does
not, by itself, demonstrate intentional discrimination against complainant
based upon her membership in a protected group. The decision in EEOC
Appeal No. 0120081768 remains the Commission's decision. There is no
further right of administrative appeal on the decision of the Commission
on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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
_____1/22/10_____________
Date
1 Because complainant did not address claims (2) and (3) in her request
for reconsideration, this decision is limited to claim (1).
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0520100135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520100135
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