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

Equal Employment Opportunity Commission

Jun 11, 2019

0120180875 (E.E.O.C. Jun. 11, 2019)

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

Leonie L.,1
Complainant,

v.

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

Appeal No. 0120180875

Hearing Nos. 480-2016-00376X & 480-2017-00038X

Agency Nos. HSTSA237742015 & HSTSA254412016

DECISION

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 May 10, 2018 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.2 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 Transportation
Security Officer, Series 1802, Level 3, Pay Band E, at Los Angeles International Airport in Los
Angeles California.

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 While we note that Complainant's January 11, 2018, appeal was premature, the Commission finds
that the appeal is now ripe for adjudication as the Agency subsequently issued a final decision on
May 10, 2018.

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HS-TSA-23774-2015

On July 17, 2014, Complainant’s doctor faxed the Agency a note regarding Complainant’s total
temporary disability (TTD) diagnosis from July 11 – 16, 2014. The doctor included a list of work
restrictions that Complainant would be under starting July 17, 2014 through August 28, 2014.
Complainant later submitted another doctor’s note excusing her from work for an “injury” and
“elbow pain” from July 27 – 29, 2014. Additionally, Complainant filed a workers’ compensation
claim.

The Human Resources Specialist (HRS) initially approved Complainant’s Continuation of Pay
(COP) under her workers’ compensation claim. Shortly thereafter, the facility was audited by
Headquarters. Complainant’s medical documentation was reviewed as part of that audit and the
HR staff realized Complainant’s documentation was insufficient and also improper because her
doctor had back-dated the documentation. More specifically, Complainant’s doctor determined
that Complainant was TTD for the period of July 11 – 16, 2014; however, the doctor did not
evaluate or physically see Complainant until July 16, 2014. In addition, Complainant had entered
the dates in the Agency’s timekeeping system that were not covered by the submitted medical
documentation. Furthermore, it was revealed that Complainant’s doctor determined that
Complainant was TTD for the period of July 27 – 29, 2014; however, he did not evaluate or
physically see her until July 29, 2014. The submitted medical documentation did not clearly state
the reason for the TTD diagnosis or how her condition affected her ability to perform the duties of
her position. HRS emailed Complainant to inform her that her documentation was insufficient
because it was backdated and missing required information under the Agency’s policies. HRS
informed Complainant that she was not entitled to COP for the absences and that she would need
to submit a leave or leave without pay request for the days in question.

Complainant responded to HRS on August 25, 2014, stating there was a mistake because she had
worked on the dates of July 11-16, 2014 and the only dates in question were July 27 – 29, 2014.
HRS researched the matter by looking up Complainant’s time cards for the dates in question. HRS
determined that Complainant had never clocked in on any of the dates in the July 11 – 16, 2014,
nor had she called in to report her absences. Complainant did explain that July 11 and 12, 2014,
were her regular days off, but she did not provide any other information for the remaining dates.
Nonetheless, HRS concluded that she did not follow proper call-off procedures. After several back
and forth emails, HRS contacted the Transportation Security Manager (TSM-1) and the Deputy
Assistant Federal Security Director (DAFSD) and asked that they contact Complainant regarding
the matter.

On October 24, 2014, TSM-1 issued Complainant a Letter of Counseling for Failure to Follow
Procedures. In the letter, TSM-1 stated that Complainant failed to follow proper call-off
procedures for each of the days she was absent on July 13, 2014 through July 29, 2014. In addition,
the letter stated that Complainant failed to provide proper medically acceptable documentation of
her original injury, provide any follow up medically acceptable documentation on the status of her
injury, and provide any complete and accurate information on your workers’ compensation forms.

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On May 29, 2015, Complainant filed an EEO complaint (Agency No. HS-TSA-23774-2015)
alleging that the Agency discriminated against on her on the bases of race/national origin
(Hispanic)3, sex (female), and color (medium-fair brown) when:

1. On November 4, 2014, management issued her a Letter of Counseling for failure to
follow procedures.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI-1) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing.

HS-TSA-25441-2016

On August 4, 2015, Complainant emailed the Transportation Security Manager (TSM-2) and
requested to be accommodated with “duties [close] to the exit.” Complainant provided a copy of
the work restrictions identified by her doctor. Therein, the doctor indicated that Complainant had
been seen on August 4, 2015, and that she would could stand intermittently (up to 50 percent of
shift) for no more than 15 cumulative minutes per hour; walk intermittently (up to 50 percent of
shift) for no more than 15 cumulative minutes per hour; bend at the waist occasionally (up to 25
percent of shift); twist torso/spine occasionally (up to 25 percent of shift); no climbing ladders/use
of scaffolds/work at height; and no lifting/carrying/pushing/pulling more than 20 pounds. These
restrictions were in effect August 4 – 18, 2015. Complainant submitted a request for light duty in
accordance with those restrictions.

On August 5, 2015, Complainant emailed the Lead Transportation Security Officer (LTSO-1) and
asked whether her paperwork was acceptable and whether she could report to work the following
day. LTSO-1 responded that her request was denied because management could not accommodate
her restrictions. LTSO-1 further informed Complainant that she could submit leave for the period
of August 4 – 18, 2015, and advised her to provide medical documentation indicating she had no
restrictions prior to her return to work. Complainant replied that her documentation indicated she
could return to work on August 18, 2015, with no restrictions. On August 6, 2015, LTSO-1
forwarded Complainant a blank OPM form and explained that her doctor’s note did not specify
that she could return to duty without restrictions, and that it needed to clearly state such. On
August 10, 2015, DAFSD issued a letter denying approval of Complainant’s light duty request
based on operational needs. The letter further informed Complainant that she could request annual,
sick, or leave without pay (LWOP) for her absence. On August 10, 2015, Complainant submitted
a Request for Leave or Approved Absence form and requested LWOP from August 9 – 18, 2015.

3 The Commission considers Hispanic to be a national origin and not a race. However, we adopt
the terminology used by Complainant.

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Complainant later learned that a Lead Transportation Security Officer (LTSO-2) submitted a light
duty request because of a knee injury that was approved. LTSO-2 was given X-ray, exit lane, and
Travel Document Checking (TDC) duties.

On February 24, 2016, Complainant filed a second EEO complaint (Agency No. HS-TSA-25441-
2016) alleging that the Agency discriminated against her on the bases of race/national origin, sex,
and color when:

2. In November 2015, management denied her request for a light duty assignment, but
approved the request for a light duty assignment for a co-worker.4

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI-2) and notice of her right to request a hearing before EEOC AJ. Complainant
requested a hearing. The AJ assigned to the matters consolidated the complaints. Complainant
subsequently withdrew both hearing requests. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

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”).

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is a pretext for discrimination.

4 Complainant did not allege discrimination on the basis of disability or denial of reasonable
accommodation.
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Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995).

Claim #1 (Letter of Counseling)

According to the Agency, Complainant received a Letter of Counseling because she did not follow
established procedures for notifying the Agency when she was absent from work because of illness
and because the medical documentation she later submitted explaining her absence was inadequate
in that it was authored by a doctor who examined Complainant after the time of her illness. The
Agency rejected that documentation as “back-dated” and not in compliance with Agency
regulations. ROI-1, at 44 and 48. This is a legitimate, nondiscriminatory reason for the Agency’s
action. Complainant does not dispute that the medical documentation she submitted was
backdated. See, HS-TSA-23774-2015 ROI at 38. Complainant has failed to show the Agency’s
explanation for its actions to be a pretext designed to conceal discriminatory animus.

Claim #2 (Denied Light Duty Assignment)

Complainant alleges that she was subjected to disparate treatment discrimination5 when her
request for light duty was denied after she injured her toe. To establish her prima facie case,
Complainant identifies as a comparator, a lead Transportation Security Officer working at a
different facility, who was granted light duty after being injured. Comparative evidence relating
to other employees is relevant only if the employees are similarly situated such that all relevant
aspects of the employees' work situation are nearly identical. See Anderson v. Dep't of Treasury,
EEOC Appeal No. 01A22092 (Mar. 13, 2003).

Here, Complainant has not identified a similarly situated employee. Complainant and the
comparator were not similarly situated because they worked in different positions and had different
supervisors. See, e.g., Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120120543
(Apr. 17, 2014) (employees working at different facilities and under different supervisors were not
similarly situated). In addition, the comparator was not similarly situated to Complainant because
he was able to perform a variety of duties including “X-ray, TDC [Travel Document Checking],
and Exit Lane” duties. ROI-2, at 93. In contrast, Complainant was only able to perform “exit”
duties. Id at 76. See, Wade H. v. U.S. Postal Serv., EEOC Appeal No. 0120151947 (Aug. 2, 2017)
(employees are not considered to be “similarly situated” if complainant and the employee have
different medical restrictions).

Complainant has not provided any other evidence from which an inference of race/national origin,
color or sex discrimination could be established. Therefore, we find that Complainant did not
establish a prima facie case of discrimination with respect to Claim #2.

5 We note again that Complainant is not contending that the Agency violated Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., by denying
her light duty.
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Nonetheless, even assuming Complainant did establish a prima facie case of discrimination as to
Claim #2, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Complainant’s light duty request was denied because it was incomplete and there was no
meaningful work available to assign her within her restrictions as she requested only “exit lane”
duties. ROI-2, at 62. In addition, a review of the light duty request reveals that Complainant did
not state a reason for the request. Id. at 84-85. By contrast, LTSO-2’s submitted request and
supporting documentation were completed fully and management had available work it could
assign to him. Id. at 63. Management provided Complainant the option to take paid or unpaid
leave, and approved Complainant’s request for LWOP for the period in question. Id. at 88-90.

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the
basis of discriminatory animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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).
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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. 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

June 11, 2019
Date