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

Equal Employment Opportunity Commission

Aug 8, 2019

0120181088 (E.E.O.C. Aug. 8, 2019)

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

Lilian C.,1
Complainant,

v.

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

Appeal No. 0120181088

Hearing No. 443201700154X

Agency No. HSTSA267592016

DECISION

On February 12, 2018, 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
January 25, 2018 final decision concerning her equal employment opportunity (EEO) complaint.
She alleged 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Transportation
Security Officer, SV-1802-E Band, at the Agency’s O'Hare International Airport facility in
Chicago, Illinois.

On September 6, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment based on race
(African-American), sex (female), and reprisal for prior protected EEO activity under Title VII,
when:

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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1. On April 12, 2016, management issued Complainant a Notice of Proposed
Removal; and

2. On June 2, 2016, management issued Complainant a Decision on the Notice of
Proposed Removal, terminating Complainant’s employment.

The pertinent record reveals the following facts. Complainant is an African-American woman.
Complainant had been a Transportation Security Officer for 13 years and had no prior
disciplinary or administrative issues. Complainant attested that she made the Agency aware of
“systemic issues” that were being leaked by the training department. Complainant stated that
management met her disclosures with “distain and hostility.” Complainant averred that she “was
put on display on an exit, a visible exhibit for all other personnel who consider exposing
corruption and deceit.”

On March 11, 2016, Complainant took the Image Mastery Assessment. She failed to meet the
standard. On March 17, 2016, after remediating with images totally different than those images
that had been presented in training and on the checkpoint, she took a second test and again failed
to meet the standard. Complainant averred that she was denied the opportunity to view her score
on the screen upon completion of her test, while all others testing after her could view their
scores on the screen. Complainant also averred that she was denied assistance by a supervisor
and forced to prepare with different software. Complainant’s third and final test was on March
25, 2016. She did not contest the result of the third test failure. Complainant averred that the
instructors acknowledged that the software on the test was different than the software being used
for remediation. Complainant also offered, as evidence, emails from a Supervisor Test
Administrator, stating that there were software problems and connectivity issues during the 2016
testing.

In addition, Complainant asserted that two white males who tested before her failed numerous
times and continue to be employed with the TSA. She says that a Caucasian female was only
demoted during the 2015 certification, after she failed three times. Complainant averred that the
Caucasian female was still allowed to remain employed as a TSO performing all duties, except
X-ray.

On April 12, 2016, management prepared a Proposed Removal, which was presented to
Complainant by a terminal manager. On June 2, 2016, the Agency issued its decision,
terminating Complainant’s employment. Complainant averred that she was “terminated almost
immediately after assisting a black female officer with her EEO claim,” ostensibly for failing the
annual certification. 2

2 During this time period, Management officials were aware that Complainant was representing
five African-American female TSOs in their EEO mediations and disciplinary actions.
Complainant, herself, also complained several times about unlawful discrimination with TSA
and solicited assistance from two U.S. Senators to assist with resolving the alleged harassment.
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The TSA Management Directive No. 1100.75.3 states than an employee may be suspended,
removed, or demoted for such cause as will promote the efficiency of the service.

Complainant maintains that her removal did not promote the efficiency of the service and that
she was terminated with “no consideration of the mitigating circumstances because she was a
black female who opposed the policies and practices of the “[management] regime.” She stated
that, during the testing process, she was never told what a passing score was and there was no
clarity of the performance expectation for passing the test.

Management witnesses averred that Complainant’s failure required the Agency to remove her for
failure to maintain her certification per the 2016 Annual Proficiency Review (APR) Guidance.
The proposing official stated that Complainant did not respond to the Notice of Proposed
Removal.

In response to Complainant’s claim that poor equipment maintenance to the hardware and
software contributed to erroneous test results, the proposing official noted that the proctor is
responsible for assuring that the equipment is working properly and disputed Complainant’s
claim that she was treated differently than other similarly situated employees.

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 a United States Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
hearing but subsequently withdrew her request. Consequently, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

Agency Decision

The Agency decision did not include a prima facie analysis for her disparate treatment claims.
Instead, the Agency stated that it articulated legitimate, non-discriminatory reasons for its
actions. It stated that Complainant failed three Image Mastery Assessments tests and employees
who do not successfully complete the requirements are subject to removal. The Agency
concluded that Complainant failed to prove that the Agency’s reasons were a pretext for
discrimination. This appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that her removal did not promote the efficiency of the service
and the Agency failed to consider that it permitted other non-certified employees to remain
employed at TSA and failed to provide itemized reports with details of the failure and denied her
a custom practice session.
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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”).

Section 717 of Title VII requires that federal agencies make their personnel decisions free of
discrimination based on race and sex. Reprisal for prior EEO activity is also prohibited. To
prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S.
567, 576 (1978). Second, the Agency must move forward by articulating a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Third, Complainant must then have an opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were
a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v.
Hicks, 509 U.S. 502 (1993). Where the Agency has articulated a legitimate, nondiscriminatory
reason for the personnel action at issue, the factual inquiry can proceed directly to the third step
of the McDonnell Douglas analysis. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-14 (1983).

Inasmuch as the notice of termination followed immediately after her efforts to assist another
African-American female employee with her EEO claims, we will assume that Complainant
established her prima facie claims of discrimination based on her race, sex and retaliation.

Assuming arguendo that Complainant established a prima facie case of discrimination on the
alleged bases, however, we also find that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. As reflected in the investigative record, the proposing
official for the removal action averred that he removed Complainant from federal service
because Appendix A of the Handbook to MD 1100.75-3 requires management to remove
employees who, like Complainant, fail to pass the annual assessment by the third attempt. The
proposing official emphasized that, prior to removing Complainant, management gave her
several opportunities to retake the assessment and provided her with remediation, to include one-
on-one instructor training and a simulator practice.

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After careful consideration of the evidence of record, including Complainant’s contentions on
appeal, we find no persuasive evidence that the Agency’s articulated reasons were pretext for
discrimination. Though Complainant contends on appeal that management failed to provide her
with the same remedial opportunities as the Agency provided white male employees and those
without prior EEO activity, the record clearly shows that management offered Complainant
numerous opportunities to improve. For example, following her first unsuccessful attempt,
management offered Complainant nearly two hours of remediation, including approximately 1.5
hours of simulator practice. Thereafter, following her second failed attempt, management again
afforded Complainant additional remediation.

Given the facts in this case, we find that management made good faith attempts to help
Complainant improve prior to removing her from federal service and did not treat her differently
than similarly situated employees. We find that Complainant has not demonstrated, by a
preponderance of the evidence, that management’s actions, including those preceding the
removal action, were based on her protected characteristics.

Regarding Complainant’s contention that management failed to consider the aggravating and
mitigating factors in her case and had an established practice of allowing non-certified
employees to continue to work, we find that Complainant has not shown that she was treated less
favorably than similarly situated comparators. To the contrary, the record clearly shows that the
deciding official in Complainant’s case also removed an employee (outside of Complainant’s
protected characteristics) who, like Complainant, repeatedly failed the annual assessment. As for
Complainant’s contention that management used administrative errors as justification for
retaining White employees, we find such contention to be speculative and unpersuasive, as there
is ample evidence in the record to show that management sought advice from human resources
officials in determining the appropriate action for the White male comparator in question. We
also find that Complainant failed to show that she was treated less favorably than similarly
situated comparators when management failed to provide itemized reports, denied her a custom
practice session, and failed to seek an exception to mandatory removal.

As for Complainant’s hostile work environment claim, we find that such claim must fail due to
our determination that the actions taken by the Agency were not shown to be motivated by
discriminatory animus. See Complainant v. United States Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000). Finally, we reject Complainant’s claim of reprisal, to the extent the
reprisal claim was based on her revealing problems about the certification process and testing
equipment, as we have long held that such whistleblowing activity is not protected EEO activity.

CONCLUSION

Accordingly, we AFFIRM the Agency’s decision finding no discrimination.

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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 tends 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. 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.
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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 8, 2019
Date