U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karen H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020004072 Agency No. HS-TSA-02043-2018 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 15, 2020, finding no discrimination concerning her 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, I- Band, at Billings Logan International Airport in Billings, Montana. On August 3, 2018, Complainant filed her complaint alleging discrimination and harassment based on age (over 40) and in reprisal for prior EEO activity when: 1. In May 2017, a coworker (C1) was told by management that Complainant could not be her advocate. 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. 2020004072 2 2. In June and August 2017, a management official, C1’s supervisor, (CS1), told a coworker (C2) (supervised by CS1) not to talk to Complainant in her office. 3. In August 2017, C1 made a remark to Complainant saying that she should leave Complainant’s office, before she got caught by management. 4. In August 2017, CS1 yelled to an unknown person on the phone, “Now she says he needs to [Freedom of Information Act (FOIA)],” referring to Complainant. 5. In June 2018, CS1 asked Complainant’s supervisor (S1) about Complainant’s whereabouts on unspecified dates. 6. On June 20, 2018, S1 required Complainant to reenter her time and attendance information. 7. On July 11, 2018, CS1 made a remark using an expletive regarding Complainant’s work schedule. 8. On July 12, 2018, CS1 had an outburst when informed that Complainant had filed an EEO complaint. 9. On an unspecified date in 2017 - 2018, CS1 threatened to take away Complainant's access to time and attendance records. 10. Beginning on July 26, 2017, and continuing to the present, management did not respond to Complainant’s investigation request regarding CS1’s behavior. At the conclusion of the investigation, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant appealed. 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 (EEO MD-110), Chap. 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"). 2020004072 3 After a review of the record, we find that Complainant failed to show that she was subjected to discrimination and harassment by the Agency as alleged. Regarding claims 1, 2, 3, 4, and 7, the alleged incidents concerned hearsay statements and/or remarks Complainant overheard. Complainant did not claim that CS1 took any actions or made any remarks directly to her. The record indicates that CS1, who supervised C1 and C2, was not in Complainant’s chain of command. The record further indicates that Complainant did not report these incidents to S1. Regarding claims 5 and 6, S1 asked Complainant about her whereabouts on April 3 and 30, 2018, because CS1 informed S1 that an identified supervisor was unable to locate Complainant on those days. The identified supervisor had a question for Complainant about proper procedure for a Driving Under the Influence incident of an officer since one of Complainant’s duties involved processing random drug testing. When Complainant told S1 that she teleworked on April 3, 2018, S1 asked her to update her time and attendance system to reflect that. Complainant however told S1 that she could not find any information regarding April 30, 2018. S1 took no further action regarding the subject matter. Regarding claim 8, Complainant clarified that the incident described therein did not happen. Regarding claim 9, S1 stated that Complainant notified him that she was unable to access WebTA (the payroll system) in order to perform her duties. S1 immediately looked into the problem and was informed that there was a glitch in the payroll system. Complainant’s access to the payroll system was restored shortly thereafter. CS1 denied he cancelled Complainant’s access to the payroll system. Regarding claim 10, the record indicates Complainant complained to her second level supervisor (S2) about CS1’s unprofessional conduct toward CS1’s employees (not toward Complainant), i.e., yelling and shouting at CS1’s employees. Complainant did not report her concerns to S1. S2 indicated that he looked into Complainant’s concerns and emailed CS1 that he would not tolerate CS1’s unprofessional behavior, i.e., raising her voice and shouting at her employees. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED. 2020004072 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020004072 5 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 May 25, 2021 Date