Kyong L.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Nov 17, 2016

0120161160 (E.E.O.C. Nov. 17, 2016)

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

Kyong L.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120161160

Hearing No. 410-2015-00006X

Agency No. HS-TSA-01627-2013

DECISION

The Commission accepts Complainant’s appeal from the Agency’s December 8, 2015 final
decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer (TSO) at the Agency’s Hartsfield-Jackson Atlanta International Airport in
Atlanta, Georgia. In March 2013, Complainant’s manager (M1) conducted attendance reviews
for several employees, including Complainant, and determined that action needed to be taken.
M1 informed Complainant’s supervisor (S1) about the situation and noted that Complainant
had accumulated six callout absences and six late arrivals. Complainant had previously been
placed on leave restriction from May 2012 to November 2012. On April 3, 2013,
Complainant’s supervisor (S1) issued Complainant a memorandum again placing her on leave

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.
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restriction from April 13, 2013 to July 13, 2013. Complainant was removed from the leave
restriction on October 5, 2013.

In January 2013, Complainant and a Lead TSO (LTSO1) were involved in an altercation.
Complainant claimed that LTSO1 made an offensive remark and disrespected her about her
work ethic. Complainant reported the incident to the Deputy Assistant Federal Security
Director (DAFSD). DAFSD instructed M1 to conduct an inquiry into the incident. After
investigating the incident, M1 determined that no further corrective action was warranted.

On June 11, 2013, Complainant finished an interview regarding another EEO matter and came
upon a group of TSOs awaiting lane assignments on her way to lunch. Complainant was
scheduled for online training that day and asked the Lead TSO (LTSO2) if she could still
attend. LTSO2 indicated that she could attend and another TSO noted that Complainant would
be in training all day. Complainant then cursed at the TSO loud enough for other employees
and passengers to hear. Complainant’s manager (M2) collected statements regarding the
incident. M2 determined that Complainant made an inappropriate and offensive comment at
the TSO, and questioned Complainant’s candor about the incident. As a result, on June 29,
2013, M2 issued Complainant a Letter of Counseling regarding the inappropriate and offensive
comment.

On July 2, 2013, Complainant submitted a complaint to M2 alleging that LTSO2 and another
supervisor (S2) harassed her by holding her to a higher standard than other TSOs regarding the
use of profanity and damaged her reputation by suggesting that she lacked candor. On July 8,
2013, DAFSD informed Complainant that he was moving her from Checkpoint E to
Checkpoint F while an inquiry was conducted into her complaint. Complainant claims that she
continued working at Checkpoint E because she did not know if she would be working in
Arrivals or Departures. Complainant alleges that DAFSD saw her still at Checkpoint E and
yelled at her in front of passengers. On July 30, 2013, an Inquiry Officer completed the
administrative inquiry into Complainant’s complaint and determined that profanity was being
uttered without management’s knowledge and Complainant’s candor had only been questioned
during her pre-decisional discussion with M2. The Inquiry Office recommended that
management conduct a briefing to the officers about inappropriate comments while working
with the public. Complainant returned to Checkpoint E on August 11, 2013.

On July 16, 2013, Complainant’s supervisor approved her request for 10 hours of annual leave
and 10 hours of sick leave for July 13 and 14, 2013. The Duty Manager later revoked the
leave approval and Complainant was charged with absence without leave (AWOL). In August
2013, the AWOL charge was corrected and Complainant was charged 10 hours each for annual
and sick leave.

On October 1, 2013, S1 issued Complainant her year-end review. Complainant received
Achieved Expectations or “3” ratings in four of the five competencies and Exceeded
Expectations or 4 in one competency. Complainant claims that her evaluation was negatively
impacted based on the June 2013 incident in which she cursed at another TSO.
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On August 8, 2013 (and amended on February 7, 2014), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (African-American), age (65), and in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, she was placed
on leave restriction; her supervisor (S1) said to her “You can leave and find another job that
suits you;” another Supervisory TSO (S2) and a Lead TSO (LTSO2) accused Complainant of
using offensive language and lack of candor; the Deputy Assistant Federal Security Director
(DAFSD) removed Complainant from a checkpoint for five weeks; DAFSD yelled at
Complainant in front of passengers and co-workers; DAFSD did not respond to Complainant’s
complaint that a Lead TSO (LTSO1) made an inappropriate comment to her; the Duty
Manager revoked 20 hours of Complainant’s approved leave and replaced it with 20 hours of
absence without leave (AWOL); and S1 issued Complainant a negative annual evaluation.

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. Complainant timely requested a hearing, but
subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency determined the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was
no evidence of discriminatory or retaliatory animus. For example, S1 stated that she placed
Complainant on leave restriction because of her excessive unscheduled absences and lack of
improvement following a prior leave restriction imposed from May 5, 2012, to November 13,
2012. Further, S1 denied telling Complainant “You can leave and go find another job that
suits you.”

With respect to the offensive language accusation, LTSO2 acknowledged that he and S2
questioned Complainant about the incident and reported it. Complainant did not deny making
the remark, but claimed that LTSO2 has used profanity as well. The Agency noted that
Complainant did not identify any witnesses to LTSO2’s use of profanity, and LTSO2 could not
recall ever using such language. Complainant was issued a Letter of Counseling regarding
inappropriate language. M2 noted during the pre-decisional discussion that Complainant
“lacked candor;” however, he did not include the claim in the Letter of Counseling.
Furthermore, LTSO2 denied that he ever accused Complainant of lack of candor.

Regarding her five-week removal from Checkpoint E, DAFSD explained that he took the
action to allow management to conduct an administrative inquiry into Complainant’s complaint
about LTSO2 and S2 who worked at Checkpoint E. DAFSD asked Complainant if she would
move voluntarily since it would be more disruptive to move the two individuals who were the
subject of the complaint, and she agreed. Further, DAFSD denied yelling at Complainant for
remaining at Checkpoint E following their discussion. DAFSD stated that Complainant
remained at Checkpoint F for approximately five weeks because the inquiry took longer than
anticipated, and he was out of the office for a few days after it was completed.
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As to her claim that management failed to address LTSO1’s inappropriate comment to her, the
record showed that DFASD directed M1 to investigate the incident. M1 completed the inquiry
on April 15, 2013, and concluded that no further corrective action was warranted.
Complainant claimed that management rewarded LTSO1 by converting him from part-time to
full-time shortly after the remark. Management explained that LTSO1 was one of 14 part-time
employees selected in April 2013 for full-time conversion pursuant to a seniority-based
selection process following the posting of an internal announcement.

With regard to the July 2013 revocation of her approved leave, management explained that
Complainant initially failed to provide administratively acceptable medical documentation
while she was on leave restriction of which the supervisor was not aware at the time of
approval. Management subsequently removed the AWOL charge and credited her with 10
hours of annual leave and 10 hours of sick leave.

Finally, as to her negative annual performance evaluation, S1 indicated that Complainant
received a rating of “Achieved Expectations” for the Interpersonal Skills competency because
it was an area that needed improvement, and Complainant’s use of profanity on June 11, 2013
was the primary reason for the rating. S1 noted that Complainant has her own personal style
and at times can come across very pointed. S1 stated that Complainant needed to respond in a
professional manner at all times.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination, reprisal, or a hostile work environment as alleged. Complainant
filed the instant appeal without submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
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must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

As Complainant chose to withdraw her request for a hearing, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented.
Here, Complainant asserted that based on her protected classes, management subjected her to a
hostile work environment based on several incidents where Agency officials took actions that
seemed adverse or disruptive to her. The Commission concludes that the conduct alleged was
insufficiently severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or
retaliatory animus played a role in any of the Agency's actions. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline, and
general workplace disputes and tribulations. For example, S1 placed Complainant on leave
restriction due to her excessive unscheduled absences. ROI, at 349, 427-29. Complainant had
previously been placed on leave restriction, but her attendance issues had not improved. Id. at
350. As a result, S1 placed Complainant on leave restriction until October 5, 2013, at which
time Complainant’s attendance had improved. Id. at 460. S1 denied telling Complainant she
could leave and find another job. Id. at 365.

With respect to her claim that management failed to respond to her complaint about LTSO1,
DAFSD confirmed that he instructed M1 to conduct an inquiry into Complainant’s allegations.
ROI, at 417. M1 determined that LTSO1 had not acted in a manner which required further
action. Id. at 474-75. Regarding the June 2013 incident, Complainant cursed at another TSO.
ROI, at 399. LTSO2 prepared a written statement about the incident and submitted it upper
management. Id. at 400. LTSO2 denied stating that Complainant had a lack of candor with
respect to the incident. M2 noted during the pre-decisional discussion with Complainant that
she had not been completely candid in her statement about the incident, but he did not include
the comment in the Letter of Counseling he issued Complainant for her inappropriate comment
to the TSO in the presence of passengers. Id. at 467-69.

As to her move to Checkpoint F, DAFSD took this action to investigate Complainant’s
complaint about LTSO2 and S2’s treatment of her at Checkpoint E. ROI, at 409.
Complainant voluntarily agreed to the move as it was the most feasible. Id. DAFSD denied
yelling at Complainant about the move and her assignment to Arrivals or Departures. Id. at
410. The inquiry took longer than anticipated, but Complainant was returned to Checkpoint E
on August 8, 2013 after it was completed and DAFSD returned from leave. Id. at 411. The
Inquiry Officer who conducted the inquiry recommended that management hold a briefing with
officers to address inappropriate comments while working with the public. Id. at 504.

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With respect to the revocation of her approved leave, the record indicates that Complainant’s
leave request was initially approved because the approving supervisor was unaware that
Complainant was on leave restriction. ROI, at 388. The AWOL charge was later changed,
and Complainant was charged 10 hours of annual leave and 10 hours of sick leave for the days
in question. Id. at 478-80.

Regarding her performance evaluation, Complainant clarified that the June 2013 incident
negatively impacted her evaluation. S1 explained that Complainant received an Achieves
Expectations rating in the Interpersonal Skills competency because there was room for
improvement. ROI, at 367. S1 stated that the June 2013 incident in which Complainant
swore at another TSO was the primary reason, but she had also received complaints from
passengers about situations that Complainant should have handled better. Id. at 367-68.

Finally, to the extent that Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
articulated reasons were a pretext for discrimination or reprisal. As a result, the Commission
finds that Complainant was not subjected to discrimination, reprisal, or a hostile work
environment as alleged.

CONCLUSION

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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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 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.

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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
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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

November 17, 2016
Date