Hung B.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 20, 2019

0120180529 (E.E.O.C. Aug. 20, 2019)

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

Hung B.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120180529

Agency No. HS-TSA-00775-2017

DECISION

On November 28, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 27, 2017, final decision concerning his 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Program Specialist, SV-0301, J-band, in the Office of Civil Rights and Liberties, Traveler
Engagement Division, Transportation Security Redress Branch, in Arlington, Virginia.

Complainant was on approved annual leave for May 5 – 6, 2016, and May 9, 2016. On May 7,
2016, Complainant was arrested by the Atlanta Police Department for two misdemeanor traffic
related offenses and one felony possession of cocaine. Complainant was charged sick leave from
May 10 – 12, 2016. Complainant was charged eight hours of Absent Without Leave (AWOL) on
May 13, 2016.

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.
0120180529

2
From May 10, 2016 to July 15, 2016, Special Agent in Charge 1 and Special Agent in Charge 2
from the Washington Field Office, Office of Inspection (OOI), conducted an investigation into
allegations of: (1) Complainant’s misdemeanor traffic offenses and felony possession of cocaine
charges while he was off-duty in Georgia; (2) Complainant’s failure to report his arrest for
various criminal charges; and (3) Complainant’s use of his government issued travel card to pay
for off-duty expenses while on leave.

On November 16, 2016, Complainant received a Notice of Proposed Removal. Subsequently, on
February 15, 2017, the Unit Chief, Office of Professional Responsibility (OPR), issued a Notice
of Decision removing Complainant from federal service. An SF-52 was issued for
Complainant’s removal with a proposed effective date of February 20, 2017. The Notice of
Decision contained three charges. Charge 1 was Off-Duty Misconduct – Specification 1: In
2014 or 2015, Complainant used cocaine; Specification 2: In January 2016, Complainant used
cocaine; and Specification 3: On May 7, 2016, cocaine was found in Complainant’s rental car
and he was arrested and charged with felony possession of cocaine. Charge 2 was Failure to
Report Arrest when Complainant did not report his May 7, 2016 arrest to his immediate
supervisor or any manager in his chain of supervision as required. Charge 3 was AWOL when
on May 13, 2016, Complainant did not report for his scheduled shift.

On February 6, 2017, Complainant filed a formal complaint, which was subsequently amended,
alleging that the Agency subjected her to discrimination on the bases of race (African-
American), sex (female), color (black), and in reprisal for prior protected EEO activity when:

1. On May 13, 2016, the Branch Manager charged Complainant as AWOL.

2. On November 16, 2016, Complainant received a Notice of Proposed Removal.

3. On November 16, 2016, Complainant became aware that the Branch Manager
influenced an OPR investigator in an effort to cover up previous misinformation
and to change the scope of the investigation dates.

The Agency accepted claims 1 and 3 for further processing. The Agency dismissed claim 2.
Specifically, the Agency noted that the November 16, 2016 Notice of Proposed Removal was
effectuated in a Notice of Decision letter dated February 15, 2017, and Complainant was
removed from his position. The Agency stated where an Agency proceeds on a proposed action,
the action merges with the proposed action and states a claim. The Agency noted upon merger,
the claim regarding the proposed action is dismissed and subsumed into the claim regarding the
actual action. The Agency noted the removal action was already accepted in EEO Case HS-
TSA-26714-2016. Thus, the Agency dismissed claim 2.

After its investigation on the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of right to request a hearing before an EEOC
Administrative Judge (AJ).
0120180529

3
In accordance with Complainant’s request, the Agency issued a final decision. In its final
decision, the Agency dismissed claim 2 for the reason previously stated. The Agency found no
discrimination on claims 1 and 2.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (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”).

Upon review, we note that on appeal Complainant does not challenge the definition of his
complaint. We find the record in the present case was fully developed. Regarding claim 1, we
find the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency
charged Complainant AWOL on May 13, 2016, when he did not report to work and did not
contact management regarding his absence. The Branch Manager stated Complainant did not
show up on May 13, 2016, and did not make contact with her. The Branch Manager also stated
she did not tell Complainant that the AWOL charge would be removed from his timecard.

Complainant admitted he did not report to duty on May 13, 2016. Complainant stated that he did
not call the Branch Manager on May 9 or May 10, 2016. He stated that he contacted the Branch
Manager on May 11, 2016, and said that he would return to work on May 12 or 13, 2016.
Complainant claimed he called the Branch Manager on May 12, 2016; however, no one
answered and he did not leave a message. Complainant stated that he was in court on May 13,
2016. Complainant stated the Branch Manager told him on May 16, 2016, that he could use sick
leave for his absence on May 13. Complainant argued that he could have been charged annual
leave, sick leave, or his time-off award instead of AWOL. Complainant stated the Branch
Manager told him that if he provided evidence he was in court on Friday, the AWOL would be
removed.

In an attempt to prove pretext for claim 1, Complainant alleged the Branch Manager
discriminated in her communication to employees, in that the Branch Manager communicated
with Caucasian employees about difficult subject matters but had a difficult time communicating
with African American employees. He stated that the Branch Manager preferred not to
communicate with African American male employees. The Branch Manager stated she did not
have a difficult time communicating with any of her employees, including African American
male employees. Upon review, we find Complainant failed to establish by a preponderance of
evidence that the Agency’s actions were a pretext for discrimination on any of his protected
bases.
0120180529

4

Regarding claim 2, we note that Complainant’s proposed removal in November 2016, was
effectuated by the Notice of Decision dated February 15, 2017, substantiating the charges in the
Notice of Proposed Removal. On September 29, 2017, Complainant appealed his ultimate
removal effective February 20, 2017, to the Merit Systems Protection Board (MSPB). The
record reveals that the MSPB issued a decision on June 28, 2018, sustaining the Agency’s action.
As a result, we dismiss claim 2 under 29 C.F.R. § 1614.107(a)(4) because it merged with the
removal claim, which was decided by the MSPB.

Regarding claim 3, we find Complainant failed to show that he suffered harm separate from his
removal from the Agency. Thus, we find claim 3 does not state a claim independent of the
removal. Accordingly, we dismiss claim 3 under 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim.

CONCLUSION

Accordingly, the Agency’s final decision dismissing claims 2 and 3 and finding no
discrimination on claim 1 is AFFIRMED.

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.
0120180529

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

August 20, 2019
Date