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

Equal Employment Opportunity Commission

Dec 13, 2017

0520170521 (E.E.O.C. Dec. 13, 2017)

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

Geraldine G.,1
Complainant,

v.

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

Request No. 0520170521

Appeal No. 0120151986

Hearing No. 570-2012-01027X

Agency No. HS-TSA-000932012

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120151986 (July 11, 2017). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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(c).

In her underlying complaint, Complainant claimed that she was discriminated against on the
bases of her sex (female), race (African-American), and color (light brown) when on October 17,
2011, she was terminated from her position as a Transportation Security Officer, SV-1802, D-
Band.

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.
0520170521

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The EEOC Administrative Judge (AJ) granted the Agency’s Motion for a Decision Without a
Hearing. The AJ found that no discrimination occurred. The AJ stated that Complainant failed
to establish a prima facie case of discrimination as the record was insufficient to show that she
was subjected to disparate treatment compared to other similarly situated individuals. The AJ
noted that like Complainant, individuals who were also terminated by the Agency were accused
of more than one single instance of being late. The AJ stated that tardiness and or time and
attendance are legitimate, nondiscriminatory reasons on which to base employment decisions.
Additionally, the AJ observed that the Supervisory Transportation Security Officer warned each
trainee in attendance that cell phones must be turned off at all times during the orientation
session, but that despite this instruction, Complainant was one of three trainees repeatedly using
their phones. The AJ noted there was also testimony that Complainant left active training
sessions for personal telephone calls. In its final order, the Agency implemented the AJ’s
Decision.

On appeal, the Commission affirmed the Agency’s final order. We found that the evidence
showed that Complainant was both tardy and had her cellphone out in the open during class, and
that Complainant had not shown these reasons to be pretext for discrimination.

In her request for reconsideration, Complainant contends that the claims against her are not true
and that her work ethic has been unjustly disparaged. In support of her position, Complainant
submits statements from managers and supervisors to attest to her strong work ethic.
Complainant states that prior to her termination, there were no disciplinary write-ups,
documentations, or meetings with her about any claims against her.

In response, the Agency asserts that Complainant’s assertions should be ignored because her
performance during the on-the-job training portion of her orientation was not relevant to the
decision to terminate her. According to the Agency, Complainant was terminated during her
basic trial period for her repeated lateness and misconduct during the classroom portion of her
orientation, which occurred prior to the on-the-job training segment.

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC
Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to
demonstrate that the appellate decision involved a clearly erroneous interpretation of material
fact or law, or will have a substantial impact on the policies, practices, or operations of the
Agency. Complainant has not presented any persuasive evidence to support reconsideration of
the Commission’s decision. Complainant has failed to establish that the Agency’s reasons for her
termination were pretext intended to hide discriminatory motivation.

After reviewing 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(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120151986 remains the
0520170521

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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 (P0610)

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 (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

December 13, 2017
Date